EXHIBIT 4
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BCAP TRUST LLC 2007-AA2
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-AA2
TRUST AGREEMENT
among
BCAP LLC,
Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Custodian
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
Dated March 1, 2007
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans...........
Section 2.03 Execution and Delivery of Certificates......................
Section 2.04 REMIC Matters...............................................
Section 2.05 Representations and Warranties of the Depositor.............
Section 2.06 Representations and Warranties of the Custodian.............
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account........
Section 3.02 Investment of Funds in the Distribution Account.............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution..................................
Section 4.02 Subordination...............................................
Section 4.03 Allocation of Realized Losses for Group II..................
Section 4.04 Monthly Statements to Certificateholders....................
Section 4.05 Allocation of Applied Realized Loss Amounts on
Group I Certificates.......................................
Section 4.06 Certain Matters Relating to the Determination of LIBOR......
Section 4.07 Supplemental Interest Account and Posted Collateral Account.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates...................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04 Persons Deemed Owners.......................................
Section 5.05 Access to List of Certificateholders' Names and Addresses...
Section 5.06 Maintenance of Office or Agency.............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor.....................
Section 6.02 Merger or Consolidation of the Depositor....................
Section 6.03 Limitation on Liability of the Depositor and Others.........
Section 6.04 Option to Purchase Defaulted Mortgage Loans.................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Trustee to Act; Appointment of Successor....................
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE, THE CUSTODIAN, VARIOUS TAX
MATTERS, SERVICING REPORTS AND PERIODIC FILINGS
Section 8.01 Duties of the Trustee.......................................
Section 8.02 [Reserved]..................................................
Section 8.03 Certain Matters Affecting the Trustee.......................
Section 8.04 Trustee and Custodian Not Liable for Certificates
or Mortgage Loans...........................................
Section 8.05 Trustee May Own Certificates................................
Section 8.06 Trustee's and Custodian's Fees and Expenses.................
Section 8.07 Eligibility Requirements for the Trustee....................
Section 8.08 Resignation and Removal of the Trustee......................
Section 8.09 Successor Trustee...........................................
Section 8.10 Merger or Consolidation of the Trustee......................
Section 8.11 Appointment of Co-Trustee or Separate Trustee...............
Section 8.12 Tax Matters.................................................
Section 8.13 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public
Accountants' Attestation Report............................
Section 8.14 Periodic Filings............................................
Section 8.15 Tax Classification of the Excess Reserve Fund Account,
the Supplemental Interest Account and the Group I
Interest Rate Swap Agreement................................
Section 8.16 Subcontractors..............................................
Section 8.17 Custodial Responsibilities..................................
Section 8.18 Limitations on Custodial Responsibilities...................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans..............................................
Section 9.02 Final Distribution on the Certificates......................
Section 9.03 Additional Termination Requirements.........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment...................................................
Section 10.02 Recordation of Agreement; Counterparts......................
Section 10.03 Governing Law...............................................
Section 10.04 Intention of Parties........................................
Section 10.05 Notices.....................................................
Section 10.06 Severability of Provisions..................................
Section 10.07 Limitation on Rights of Certificateholders..................
Section 10.08 Certificates Nonassessable and Fully Paid...................
Section 10.09 Waiver of Jury Trial........................................
Section 10.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness..............................................
SCHEDULES
---------
Schedule I Mortgage Loan Schedule
EXHIBITS
--------
EXHIBIT A Form of Class I-A, Class I-M and Class I-B, Class I-IO, Class
I-PO, Class II-A, Class II-M and Class II-B, Class II-IO and
Class II-PO Certificates
EXHIBIT B Form of Class I-R and Class II-AR Certificates
EXHIBIT C Form of Class I-CE Certificates
EXHIBIT D Form of Request for Release
EXHIBIT E Form of Initial Certification of Custodian
EXHIBIT F Form of Document Certification and Exception Report of Custodian
EXHIBIT G Form of Residual Transfer Affidavit
EXHIBIT H Form of Transferor Certificate
EXHIBIT I Form of Rule 144A Letter
EXHIBIT J Form of Certification to be Provided with Form 10-K
EXHIBIT K Form of Trustee Certification to be Provided to Depositor
EXHIBIT L-1 Xxxxx Fargo Sale and Servicing Agreement
EXHIBIT L-2 Countrywide Sale Agreement
EXHIBIT M Countrywide Servicing Agreement
EXHIBIT N-1 Xxxxx Fargo Assignment Agreement
EXHIBIT N-2 Countrywide Assignment Agreement
EXHIBIT O Group I Interest Rate Swap Agreement
EXHIBIT P Servicing Criteria
EXHIBIT Q Additional Form 10-D Disclosure
EXHIBIT R Additional Form 10-K Disclosure
EXHIBIT S Form 8-K Disclosure Information
EXHIBIT T Additional Disclosure Notification
EXHIBIT U Countrywide Amendment Reg AB
EXHIBIT V Representation Letter
THIS TRUST AGREEMENT, dated as of March 1, 2007 (this "Agreement"),
is hereby executed by and between BCAP LLC, a Delaware limited liability company
(the "Depositor"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as custodian (in such capacity, the "Custodian"), and DEUTSCHE BANK
NATIONAL TRUST COMPANY, a national banking association, as trustee (the
"Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that seven segregated asset pools within the
Trust Fund (exclusive of (i) the Group I Interest Rate Swap Agreement, (ii) the
Supplemental Interest Account, (iii) the Excess Reserve Fund Account and (iv)
the right of the Group I LIBOR Certificates to receive Basis Risk Carry Forward
Amounts and, without duplication, Group I Upper Tier Carry Forward Amounts,
subject to the obligation to pay Class I-IO Shortfalls) be treated for federal
income tax purposes as comprising seven REMICs (each, with respect to Group I, a
"Group I Trust REMIC" or, in the alternative, the Group I Pooling Tier REMIC-A,
the Group I Pooling Tier REMIC-B, the Group I Lower Tier REMIC and the Group I
Upper Tier REMIC, respectively, and with respect to Group II, a "Group II Trust
REMIC" or, in the alternative, the Group II Pooling Tier REMIC, the Group II
Lower Tier REMIC and the Group II Upper Tier REMIC, respectively).
Each Class of Group I Certificates (other than the Class I-R
Certificates), other than the right of each Class of Group I LIBOR Certificates
to receive Basis Risk Carry Forward Amounts and, without duplication, Group I
Upper Tier Carry Forward Amounts and the obligation to pay Class I-IO Shortfalls
and the right of the Class I-CE Certificates to receive payments from the Group
I Interest Rate Swap Agreement, and the right to receive Class I-IO Shortfalls
represents ownership of a regular interest (or in the case of the Class I-CE
Certificates, two regular interests) in the Group I Upper Tier REMIC for
purposes of the REMIC Provisions. The Class I-R Certificates represent ownership
of the sole Class of residual interest in each of the Group I Pooling Tier
REMIC-A, the Group I Pooling Tier REMIC-B, the Group I Lower Tier REMIC and the
Group I Upper Tier REMIC for purposes of the REMIC Provisions.
Each Class of Group II Certificates (other than the Class II-AR
Certificates) represents ownership of a regular interest in the Group II Upper
Tier REMIC for purposes of the REMIC Provisions. The Class II-AR Certificates
represent ownership of the sole Class of residual interest in each of the Group
II Pooling Tier REMIC, the Group II Lower Tier REMIC and the Group II Upper Tier
REMIC. The Startup Day for each Trust REMIC is the Closing Date. The latest
possible maturity date for each regular interest is the latest date referenced
in Section 2.04.
The Group I Upper Tier REMIC shall hold as assets the several
Classes of uncertificated Group I Lower Tier Regular Interests, set out below.
The Group I Lower Tier REMIC shall hold as assets the several Classes of
uncertificated the Group I Pooling Tier REMIC-B Regular Interests. The Group I
Pooling Tier REMIC-B shall hold as assets the several Classes of uncertificated
Group I Pooling Tier REMIC-A Regular Interests. The Group I Pooling Tier REMIC-A
shall hold as assets the assets relating to Loan Group I (exclusive of (i) the
Group I Interest Rate Swap Agreement, (ii) the Supplemental Interest Account,
(iii) the Excess Reserve Fund Account, and (iv) the right of the Group I LIBOR
Certificates to receive Basis Risk Carry Forward Amounts and, without
duplication, Group I Upper Tier Carry Forward Amounts and the obligation to pay
Class I-IO Shortfalls).
For federal income tax purposes, each Class of Group I LIBOR
Certificates represents beneficial ownership of a regular interest in the Group
I Upper Tier REMIC and the right to receive Basis Risk Carry Forward Amounts
and, without duplication, Group I Upper Tier Carry Forward Amounts, subject to
the obligation to pay Class I-IO Shortfalls, and the Class I-CE Certificates
represent beneficial ownership of two regular interests in the Group I Upper
Tier REMIC, the Excess Reserve Fund Account, the Supplemental Interest Account
and the Group I Interest Rate Swap Agreement, which portions of the Trust Fund
shall be treated as a grantor trust.
Group I Pooling Tier REMIC-A
The Group I Pooling Tier REMIC-A shall issue the following interests
in the Group I Pooling Tier REMIC-A, and each such interest, other than the
Class PTI-A-R Interest, is hereby designated as a regular interest in the Group
I Pooling Tier REMIC-A. Pooling Tier REMIC-A Interests with a "-1-" in their
designation shall relate to Subgroup I-1 Mortgage Loans and Pooling Tier REMIC-A
Interests with a "-2-" in their designation shall relate to the Subgroup I-2
Mortgage Loans. The Group I Pooling Tier REMIC-A shall also issue the Class
PTI-A-R Interest. The Class PTI-A-R Interest is hereby designated as the sole
Class of residual interest in the Group I Pooling Tier REMIC-A.
Initial Group I
Pooling Tier
Group I Pooling Tier Group I Pooling Tier REMIC-A
REMIC-A Interest REMIC-A Interest Rate Principal Amount
-------------------- --------------------- ----------------
Class PTA-I-1-1 (1) $3,010,817.75
Class PTA-I-1-2A (2) $6,752,905.70
Class PTA-I-1-2B (3) $6,752,905.70
Class PTA-I-1-3A (2) $6,554,797.58
Class PTA-I-1-3B (3) $6,554,797.58
Class PTA-I-1-4A (2) $6,362,499.46
Class PTA-I-1-4B (3) $6,362,499.46
Class PTA-I-1-5A (2) $6,175,840.97
Class PTA-I-1-5B (3) $6,175,840.97
Class PTA-I-1-6A (2) $5,994,656.77
Class PTA-I-1-6B (3) $5,994,656.77
Class PTA-I-1-7A (2) $5,818,786.35
Class PTA-I-1-7B (3) $5,818,786.35
Class PTA-I-1-8A (2) $5,648,073.91
Class PTA-I-1-8B (3) $5,648,073.91
Class PTA-I-1-9A (2) $5,482,368.21
Class PTA-I-1-9B (3) $5,482,368.21
Class PTA-I-1-10A (2) $5,321,522.46
Class PTA-I-1-10B (3) $5,321,522.46
Class PTA-I-1-11A (2) $5,165,394.16
Class PTA-I-1-11B (3) $5,165,394.16
Class PTA-I-1-12A (2) $5,013,844.98
Class PTA-I-1-12B (3) $5,013,844.98
Class PTA-I-1-13A (2) $4,866,740.66
Class PTA-I-1-13B (3) $4,866,740.66
Class PTA-I-1-14A (2) $4,723,950.86
Class PTA-I-1-14B (3) $4,723,950.86
Class PTA-I-1-15A (2) $4,585,349.09
Class PTA-I-1-15B (3) $4,585,349.09
Class PTA-I-1-16A (2) $4,450,812.54
Class PTA-I-1-16B (3) $4,450,812.54
Class PTA-I-1-17A (2) $4,320,222.01
Class PTA-I-1-17B (3) $4,320,222.01
Class PTA-I-1-18A (2) $4,193,461.79
Class PTA-I-1-18B (3) $4,193,461.79
Class PTA-I-1-19A (2) $4,070,419.57
Class PTA-I-1-19B (3) $4,070,419.57
Class PTA-I-1-20A (2) $3,950,986.33
Class PTA-I-1-20B (3) $3,950,986.33
Class PTA-I-1-21A (2) $3,835,056.24
Class PTA-I-1-21B (3) $3,835,056.24
Class PTA-I-1-22A (2) $3,722,526.57
Class PTA-I-1-22B (3) $3,722,526.57
Class PTA-I-1-23A (2) $3,613,297.62
Class PTA-I-1-23B (3) $3,613,297.62
Class PTA-I-1-24A (2) $3,507,272.61
Class PTA-I-1-24B (3) $3,507,272.61
Class PTA-I-1-25A (2) $3,404,357.56
Class PTA-I-1-25B (3) $3,404,357.56
Class PTA-I-1-26A (2) $3,335,398.11
Class PTA-I-1-26B (3) $3,335,398.11
Class PTA-I-1-27A (2) $3,206,589.30
Class PTA-I-1-27B (3) $3,206,589.30
Class PTA-I-1-28A (2) $3,112,494.16
Class PTA-I-1-28B (3) $3,112,494.16
Class PTA-I-1-29A (2) $3,036,813.85
Class PTA-I-1-29B (3) $3,036,813.85
Class PTA-I-1-30A (2) $2,932,029.71
Class PTA-I-1-30B (3) $2,932,029.71
Class PTA-I-1-31A (2) $3,066,261.09
Class PTA-I-1-31B (3) $3,066,261.09
Class PTA-I-1-32A (2) $3,118,774.45
Class PTA-I-1-32B (3) $3,118,774.45
Class PTA-I-1-33A (2) $3,035,336.91
Class PTA-I-1-33B (3) $3,035,336.91
Class PTA-I-1-34A (2) $2,656,634.72
Class PTA-I-1-34B (3) $2,656,634.72
Class PTA-I-1-35A (2) $3,651,649.65
Class PTA-I-1-35B (3) $3,651,649.65
Class PTA-I-1-36A (2) $2,772,528.45
Class PTA-I-1-36B (3) $2,772,528.45
Class PTA-I-1-37A (2) $2,308,793.10
Class PTA-I-1-37B (3) $2,308,793.10
Class PTA-I-1-38A (2) $2,241,037.88
Class PTA-I-1-38B (3) $2,241,037.88
Class PTA-I-1-39A (2) $2,175,270.28
Class PTA-I-1-39B (3) $2,175,270.28
Class PTA-I-1-40A (2) $2,111,432.01
Class PTA-I-1-40B (3) $2,111,432.01
Class PTA-I-1-41A (2) $2,049,466.50
Class PTA-I-1-41B (3) $2,049,466.50
Class PTA-I-1-42A (2) $1,989,318.82
Class PTA-I-1-42B (3) $1,989,318.82
Class PTA-I-1-43A (2) $1,930,935.66
Class PTA-I-1-43B (3) $1,930,935.66
Class PTA-I-1-44A (2) $1,874,265.28
Class PTA-I-1-44B (3) $1,874,265.28
Class PTA-I-1-45A (2) $1,819,257.44
Class PTA-I-1-45B (3) $1,819,257.44
Class PTA-I-1-46A (2) $1,765,863.39
Class PTA-I-1-46B (3) $1,765,863.39
Class PTA-I-1-47A (2) $1,714,035.79
Class PTA-I-1-47B (3) $1,714,035.79
Class PTA-I-1-48A (2) $1,663,728.70
Class PTA-I-1-48B (3) $1,663,728.70
Class PTA-I-1-49A (2) $1,614,897.53
Class PTA-I-1-49B (3) $1,614,897.53
Class PTA-I-1-50A (2) $1,567,499.00
Class PTA-I-1-50B (3) $1,567,499.00
Class PTA-I-1-51A (2) $1,521,491.08
Class PTA-I-1-51B (3) $1,521,491.08
Class PTA-I-1-52A (2) $1,483,511.61
Class PTA-I-1-52B (3) $1,483,511.61
Class PTA-I-1-53A (2) $1,477,753.70
Class PTA-I-1-53B (3) $1,477,753.70
Class PTA-I-1-54A (2) $1,400,040.66
Class PTA-I-1-54B (3) $1,400,040.66
Class PTA-I-1-55A (2) $1,375,501.96
Class PTA-I-1-55B (3) $1,375,501.96
Class PTA-I-1-56A (2) $1,368,004.90
Class PTA-I-1-56B (3) $1,368,004.90
Class PTA-I-1-57A (2) $1,464,622.63
Class PTA-I-1-57B (3) $1,464,622.63
Class PTA-I-1-58A (2) $3,277,817.86
Class PTA-I-1-58B (3) $3,277,817.86
Class PTA-I-1-59A (2) $10,636,331.89
Class PTA-I-1-59B (3) $10,636,331.89
Class PTA-I-1-60A (2) $24,100,833.15
Class PTA-I-1-60B (3) $24,100,833.15
Class PTA-I-1-61A (3) $728,858.57
Class PTA-I-1-61B (3) $728,858.57
Class PTA-I-1-62A (2) $87,608.58
Class PTA-I-1-62B (3) $87,608.58
Class PTA-I-1-63A (2) $85,031.77
Class PTA-I-1-63B (3) $85,031.77
Class PTA-I-1-64A (2) $82,530.69
Class PTA-I-1-64B (3) $82,530.69
Class PTA-I-1-65A (2) $80,103.12
Class PTA-I-1-65B (3) $80,103.12
Class PTA-I-1-66A (2) $77,746.90
Class PTA-I-1-66B (3) $77,746.90
Class PTA-I-1-67A (2) $75,459.93
Class PTA-I-1-67B (3) $75,459.93
Class PTA-I-1-68A (2) $73,240.17
Class PTA-I-1-68B (3) $73,240.17
Class PTA-I-1-69A (2) $71,085.66
Class PTA-I-1-69B (3) $71,085.66
Class PTA-I-1-70A (2) $68,994.49
Class PTA-I-1-70B (3) $68,994.49
Class PTA-I-1-71A (3) $66,964.78
Class PTA-I-1-71B (3) $66,964.78
Class PTA-I-1-72A (2) $74,369.28
Class PTA-I-1-72B (3) $74,369.28
Class PTA-I-1-73A (2) $126,746.36
Class PTA-I-1-73B (3) $126,746.36
Class PTA-I-1-74A (2) $59,065.41
Class PTA-I-1-74B (3) $59,065.41
Class PTA-I-1-75A (2) $73,184.42
Class PTA-I-1-75B (3) $73,184.42
Class PTA-I-1-76A (2) $55,169.42
Class PTA-I-1-76B (3) $55,169.42
Class PTA-I-1-77A (2) $62,975.68
Class PTA-I-1-77B (3) $62,975.68
Class PTA-I-1-78A (2) $51,679.80
Class PTA-I-1-78B (3) $51,679.80
Class PTA-I-1-79A (2) $100,504.28
Class PTA-I-1-79B (3) $100,504.28
Class PTA-I-1-80A (2) $181,963.20
Class PTA-I-1-80B (3) $181,963.20
Class PTA-I-1-81A (3) $203,444.44
Class PTA-I-1-81B (3) $203,444.44
Class PTA-I-1-82A (2) $545,273.65
Class PTA-I-1-82B (3) $545,273.65
Class PTA-I-1-83A (2) $470,493.70
Class PTA-I-1-83B (3) $470,493.70
Class PTA-I-1-84A (2) $5,974.96
Class PTA-I-1-84B (3) $5,974.96
Class PTA-I-1-85A (2) $5,798.62
Class PTA-I-1-85B (3) $5,798.62
Class PTA-I-1-86A (2) $5,627.48
Class PTA-I-1-86B (3) $5,627.48
Class PTA-I-1-87A (2) $5,461.38
Class PTA-I-1-87B (3) $5,461.38
Class PTA-I-1-88A (2) $5,300.18
Class PTA-I-1-88B (3) $5,300.18
Class PTA-I-1-89A (2) $5,143.73
Class PTA-I-1-89B (3) $5,143.73
Class PTA-I-1-90A (2) $4,991.89
Class PTA-I-1-90B (3) $4,991.89
Class PTA-I-1-91A (3) $4,844.53
Class PTA-I-1-91B (3) $4,844.53
Class PTA-I-1-92A (2) $4,701.51
Class PTA-I-1-92B (3) $4,701.51
Class PTA-I-1-93A (2) $4,562.70
Class PTA-I-1-93B (3) $4,562.70
Class PTA-I-1-94A (2) $4,427.99
Class PTA-I-1-94B (3) $4,427.99
Class PTA-I-1-95A (2) $4,297.25
Class PTA-I-1-95B (3) $4,297.25
Class PTA-I-1-96A (2) $4,170.36
Class PTA-I-1-96B (3) $4,170.36
Class PTA-I-1-97A (2) $4,047.22
Class PTA-I-1-97B (3) $4,047.22
Class PTA-I-1-98A (2) $3,927.70
Class PTA-I-1-98B (3) $3,927.70
Class PTA-I-1-99A (2) $3,811.71
Class PTA-I-1-99B (3) $3,811.71
Class PTA-I-1-100A (2) $3,699.14
Class PTA-I-1-100B (3) $3,699.14
Class PTA-I-1-101A (3) $3,589.89
Class PTA-I-1-101B (3) $3,589.89
Class PTA-I-1-102A (2) $3,483.85
Class PTA-I-1-102B (3) $3,483.85
Class PTA-I-1-103A (2) $3,380.95
Class PTA-I-1-103B (3) $3,380.95
Class PTA-I-1-104A (2) $3,281.08
Class PTA-I-1-104B (3) $3,281.08
Class PTA-I-1-105A (2) $3,184.16
Class PTA-I-1-105B (3) $3,184.16
Class PTA-I-1-106A (2) $3,090.09
Class PTA-I-1-106B (3) $3,090.09
Class PTA-I-1-107A (2) $2,998.80
Class PTA-I-1-107B (3) $2,998.80
Class PTA-I-1-108A (2) $2,910.20
Class PTA-I-1-108B (3) $2,910.20
Class PTA-I-1-109A (2) $2,824.22
Class PTA-I-1-109B (3) $2,824.22
Class PTA-I-1-110A (2) $3,374.33
Class PTA-I-1-110B (3) $3,374.33
Class PTA-I-1-111A (3) $3,625.03
Class PTA-I-1-111B (3) $3,625.03
Class PTA-I-1-112A (2) $5,863.46
Class PTA-I-1-112B (3) $5,863.46
Class PTA-I-1-113A (2) $5,828.09
Class PTA-I-1-113B (3) $5,828.09
Class PTA-I-1-114A (2) $2,176.61
Class PTA-I-1-114B (3) $2,176.61
Class PTA-I-1-115A (2) $3,039.69
Class PTA-I-1-115B (3) $3,039.69
Class PTA-I-1-116A (2) $6,884.46
Class PTA-I-1-116B (3) $6,884.46
Class PTA-I-1-117A (2) $37,186.35
Class PTA-I-1-117B (3) $37,186.35
Class PTA-I-1-118A (2) $10,619.98
Class PTA-I-1-118B (3) $10,619.98
Class PTA-I-1-119A (2) $13,958.55
Class PTA-I-1-119B (3) $13,958.55
Class PTA-I-2-1 (4) $3,983,478.13
Class PTA-I-2-2A (5) $8,934,467.12
Class PTA-I-2-2B (6) $8,934,467.12
Class PTA-I-2-3A (5) $8,672,359.14
Class PTA-I-2-3B (6) $8,672,359.14
Class PTA-I-2-4A (5) $8,417,938.10
Class PTA-I-2-4B (6) $8,417,938.10
Class PTA-I-2-5A (5) $8,170,978.61
Class PTA-I-2-5B (6) $8,170,978.61
Class PTA-I-2-6A (5) $7,931,261.91
Class PTA-I-2-6B (6) $7,931,261.91
Class PTA-I-2-7A (5) $7,698,575.64
Class PTA-I-2-7B (6) $7,698,575.64
Class PTA-I-2-8A (5) $7,472,713.65
Class PTA-I-2-8B (6) $7,472,713.65
Class PTA-I-2-9A (5) $7,253,475.87
Class PTA-I-2-9B (6) $7,253,475.87
Class PTA-I-2-10A (5) $7,040,668.06
Class PTA-I-2-10B (6) $7,040,668.06
Class PTA-I-2-11A (5) $6,834,101.69
Class PTA-I-2-11B (6) $6,834,101.69
Class PTA-I-2-12A (5) $6,633,593.76
Class PTA-I-2-12B (6) $6,633,593.76
Class PTA-I-2-13A (5) $6,438,966.62
Class PTA-I-2-13B (6) $6,438,966.62
Class PTA-I-2-14A (5) $6,250,047.84
Class PTA-I-2-14B (6) $6,250,047.84
Class PTA-I-2-15A (5) $6,066,670.04
Class PTA-I-2-15B (6) $6,066,670.04
Class PTA-I-2-16A (5) $5,888,670.75
Class PTA-I-2-16B (6) $5,888,670.75
Class PTA-I-2-17A (5) $5,715,892.27
Class PTA-I-2-17B (6) $5,715,892.27
Class PTA-I-2-18A (5) $5,548,181.50
Class PTA-I-2-18B (6) $5,548,181.50
Class PTA-I-2-19A (5) $5,385,389.85
Class PTA-I-2-19B (6) $5,385,389.85
Class PTA-I-2-20A (5) $5,227,373.07
Class PTA-I-2-20B (6) $5,227,373.07
Class PTA-I-2-21A (5) $5,073,991.16
Class PTA-I-2-21B (6) $5,073,991.16
Class PTA-I-2-22A (5) $4,925,108.20
Class PTA-I-2-22B (6) $4,925,108.20
Class PTA-I-2-23A (5) $4,780,592.27
Class PTA-I-2-23B (6) $4,780,592.27
Class PTA-I-2-24A (5) $4,640,315.32
Class PTA-I-2-24B (6) $4,640,315.32
Class PTA-I-2-25A (5) $4,504,153.04
Class PTA-I-2-25B (6) $4,504,153.04
Class PTA-I-2-26A (5) $4,412,915.88
Class PTA-I-2-26B (6) $4,412,915.88
Class PTA-I-2-27A (5) $4,242,494.70
Class PTA-I-2-27B (6) $4,242,494.70
Class PTA-I-2-28A (5) $4,118,001.63
Class PTA-I-2-28B (6) $4,118,001.63
Class PTA-I-2-29A (5) $4,017,872.41
Class PTA-I-2-29B (6) $4,017,872.41
Class PTA-I-2-30A (5) $3,879,237.20
Class PTA-I-2-30B (6) $3,879,237.20
Class PTA-I-2-31A (5) $4,056,832.73
Class PTA-I-2-31B (6) $4,056,832.73
Class PTA-I-2-32A (5) $4,126,310.80
Class PTA-I-2-32B (6) $4,126,310.80
Class PTA-I-2-33A (5) $4,015,918.33
Class PTA-I-2-33B (6) $4,015,918.33
Class PTA-I-2-34A (5) $3,514,874.42
Class PTA-I-2-34B (6) $3,514,874.42
Class PTA-I-2-35A (5) $4,831,334.13
Class PTA-I-2-35B (6) $4,831,334.13
Class PTA-I-2-36A (5) $3,668,208.23
Class PTA-I-2-36B (6) $3,668,208.23
Class PTA-I-2-37A (5) $3,054,660.76
Class PTA-I-2-37B (6) $3,054,660.76
Class PTA-I-2-38A (5) $2,965,016.85
Class PTA-I-2-38B (6) $2,965,016.85
Class PTA-I-2-39A (5) $2,878,002.69
Class PTA-I-2-39B (6) $2,878,002.69
Class PTA-I-2-40A (5) $2,793,541.13
Class PTA-I-2-40B (6) $2,793,541.13
Class PTA-I-2-41A (5) $2,711,557.34
Class PTA-I-2-41B (6) $2,711,557.34
Class PTA-I-2-42A (5) $2,631,978.64
Class PTA-I-2-42B (6) $2,631,978.64
Class PTA-I-2-43A (5) $2,554,734.50
Class PTA-I-2-43B (6) $2,554,734.50
Class PTA-I-2-44A (5) $2,479,756.46
Class PTA-I-2-44B (6) $2,479,756.46
Class PTA-I-2-45A (5) $2,406,978.05
Class PTA-I-2-45B (6) $2,406,978.05
Class PTA-I-2-46A (5) $2,336,334.76
Class PTA-I-2-46B (6) $2,336,334.76
Class PTA-I-2-47A (5) $2,267,763.99
Class PTA-I-2-47B (6) $2,267,763.99
Class PTA-I-2-48A (5) $2,201,204.94
Class PTA-I-2-48B (6) $2,201,204.94
Class PTA-I-2-49A (5) $2,136,598.60
Class PTA-I-2-49B (6) $2,136,598.60
Class PTA-I-2-50A (5) $2,073,887.73
Class PTA-I-2-50B (6) $2,073,887.73
Class PTA-I-2-51A (5) $2,013,016.71
Class PTA-I-2-51B (6) $2,013,016.71
Class PTA-I-2-52A (5) $1,962,767.78
Class PTA-I-2-52B (6) $1,962,767.78
Class PTA-I-2-53A (5) $1,955,149.74
Class PTA-I-2-53B (6) $1,955,149.74
Class PTA-I-2-54A (5) $1,852,331.10
Class PTA-I-2-54B (6) $1,852,331.10
Class PTA-I-2-55A (5) $1,819,865.05
Class PTA-I-2-55B (6) $1,819,865.05
Class PTA-I-2-56A (5) $1,809,946.02
Class PTA-I-2-56B (6) $1,809,946.02
Class PTA-I-2-57A (5) $1,937,776.62
Class PTA-I-2-57B (6) $1,937,776.62
Class PTA-I-2-58A (5) $4,336,734.02
Class PTA-I-2-58B (6) $4,336,734.02
Class PTA-I-2-59A (5) $14,072,454.40
Class PTA-I-2-59B (6) $14,072,454.40
Class PTA-I-2-60A (2) $31,886,733.03
Class PTA-I-2-60B (3) $31,886,733.03
Class PTA-I-2-61A (3) $964,320.13
Class PTA-I-2-61B (3) $964,320.13
Class PTA-I-2-62A (2) $115,910.99
Class PTA-I-2-62B (3) $115,910.99
Class PTA-I-2-63A (2) $112,501.73
Class PTA-I-2-63B (3) $112,501.73
Class PTA-I-2-64A (2) $109,192.66
Class PTA-I-2-64B (3) $109,192.66
Class PTA-I-2-65A (2) $105,980.85
Class PTA-I-2-65B (3) $105,980.85
Class PTA-I-2-66A (2) $102,863.44
Class PTA-I-2-66B (3) $102,863.44
Class PTA-I-2-67A (2) $99,837.65
Class PTA-I-2-67B (3) $99,837.65
Class PTA-I-2-68A (2) $96,900.79
Class PTA-I-2-68B (3) $96,900.79
Class PTA-I-2-69A (2) $94,050.26
Class PTA-I-2-69B (3) $94,050.26
Class PTA-I-2-70A (2) $91,283.52
Class PTA-I-2-70B (3) $91,283.52
Class PTA-I-2-71A (3) $88,598.10
Class PTA-I-2-71B (3) $88,598.10
Class PTA-I-2-72A (2) $98,394.66
Class PTA-I-2-72B (3) $98,394.66
Class PTA-I-2-73A (2) $167,692.43
Class PTA-I-2-73B (3) $167,692.43
Class PTA-I-2-74A (2) $78,146.81
Class PTA-I-2-74B (3) $78,146.81
Class PTA-I-2-75A (2) $96,827.03
Class PTA-I-2-75B (3) $96,827.03
Class PTA-I-2-76A (2) $72,992.19
Class PTA-I-2-76B (3) $72,992.19
Class PTA-I-2-77A (2) $83,320.30
Class PTA-I-2-77B (3) $83,320.30
Class PTA-I-2-78A (2) $68,375.23
Class PTA-I-2-78B (3) $68,375.23
Class PTA-I-2-79A (2) $132,972.72
Class PTA-I-2-79B (3) $132,972.72
Class PTA-I-2-80A (2) $240,747.35
Class PTA-I-2-80B (3) $240,747.35
Class PTA-I-2-81A (3) $269,168.23
Class PTA-I-2-81B (3) $269,168.23
Class PTA-I-2-82A (2) $721,427.14
Class PTA-I-2-82B (3) $721,427.14
Class PTA-I-2-83A (2) $622,489.15
Class PTA-I-2-83B (3) $622,489.15
Class PTA-I-2-84A (2) $7,905.20
Class PTA-I-2-84B (3) $7,905.20
Class PTA-I-2-85A (2) $7,671.89
Class PTA-I-2-85B (3) $7,671.89
Class PTA-I-2-86A (2) $7,445.47
Class PTA-I-2-86B (3) $7,445.47
Class PTA-I-2-87A (2) $7,225.71
Class PTA-I-2-87B (3) $7,225.71
Class PTA-I-2-88A (2) $7,012.43
Class PTA-I-2-88B (3) $7,012.43
Class PTA-I-2-89A (2) $6,805.44
Class PTA-I-2-89B (3) $6,805.44
Class PTA-I-2-90A (2) $6,604.55
Class PTA-I-2-90B (3) $6,604.55
Class PTA-I-2-91A (3) $6,409.58
Class PTA-I-2-91B (3) $6,409.58
Class PTA-I-2-92A (2) $6,220.35
Class PTA-I-2-92B (3) $6,220.35
Class PTA-I-2-93A (2) $6,036.71
Class PTA-I-2-93B (3) $6,036.71
Class PTA-I-2-94A (2) $5,858.48
Class PTA-I-2-94B (3) $5,858.48
Class PTA-I-2-95A (2) $5,685.50
Class PTA-I-2-95B (3) $5,685.50
Class PTA-I-2-96A (2) $5,517.62
Class PTA-I-2-96B (3) $5,517.62
Class PTA-I-2-97A (2) $5,354.69
Class PTA-I-2-97B (3) $5,354.69
Class PTA-I-2-98A (2) $5,196.56
Class PTA-I-2-98B (3) $5,196.56
Class PTA-I-2-99A (2) $5,043.10
Class PTA-I-2-99B (3) $5,043.10
Class PTA-I-2-100A (2) $4,894.16
Class PTA-I-2-100B (3) $4,894.16
Class PTA-I-2-101A (3) $4,749.62
Class PTA-I-2-101B (3) $4,749.62
Class PTA-I-2-102A (2) $4,609.33
Class PTA-I-2-102B (3) $4,609.33
Class PTA-I-2-103A (2) $4,473.18
Class PTA-I-2-103B (3) $4,473.18
Class PTA-I-2-104A (2) $4,341.05
Class PTA-I-2-104B (3) $4,341.05
Class PTA-I-2-105A (2) $4,212.81
Class PTA-I-2-105B (3) $4,212.81
Class PTA-I-2-106A (2) $4,088.36
Class PTA-I-2-106B (3) $4,088.36
Class PTA-I-2-107A (2) $3,967.58
Class PTA-I-2-107B (3) $3,967.58
Class PTA-I-2-108A (2) $3,850.35
Class PTA-I-2-108B (3) $3,850.35
Class PTA-I-2-109A (2) $3,736.59
Class PTA-I-2-109B (3) $3,736.59
Class PTA-I-2-110A (2) $4,464.43
Class PTA-I-2-110B (3) $4,464.43
Class PTA-I-2-111A (3) $4,796.11
Class PTA-I-2-111B (3) $4,796.11
Class PTA-I-2-112A (2) $7,757.68
Class PTA-I-2-112B (3) $7,757.68
Class PTA-I-2-113A (2) $7,710.89
Class PTA-I-2-113B (3) $7,710.89
Class PTA-I-2-114A (2) $2,879.78
Class PTA-I-2-114B (3) $2,879.78
Class PTA-I-2-115A (2) $4,021.68
Class PTA-I-2-115B (3) $4,021.68
Class PTA-I-2-116A (2) $9,108.52
Class PTA-I-2-116B (3) $9,108.52
Class PTA-I-2-117A (2) $49,199.59
Class PTA-I-2-117B (3) $49,199.59
Class PTA-I-2-118A (2) $14,050.82
Class PTA-I-2-118B (3) $14,050.82
Class PTA-I-2-119A (2) $18,467.93
Class PTA-I-2-119B (3) $18,467.93
Class PTA-I-R (7) (7)
--------------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
Group I Pooling Tier REMIC-A Subgroup I-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
product of (i) 2 and (ii) the Group I Pooling Tier REMIC-A Subgroup I-1
WAC Rate, subject to a maximum rate of 9.8094%.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
excess, if any, of (A) the product of (i) 2 and (ii) the Group I Pooling
Tier REMIC-A Subgroup I-1 WAC Rate over (B) 9.8094%.
(4) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
Group I Pooling Tier REMIC-A Subgroup I-2 WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
product of (i) 2 and (ii) the Group I Pooling Tier REMIC-A Subgroup I-2
WAC Rate, subject to a maximum rate of 9.8094%.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-A Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-A Interest Rate") equal to the
excess, if any, of (A) the product of (i) 2 and (ii) the Group I Pooling
Tier REMIC-A Subgroup I-2 WAC Rate over (B) 9.8094%.
(7) The Class PTI-A-R Interest shall not have a principal balance and shall
not bear interest.
On each Distribution Date, the Trustee shall first pay from the
Trust Fund out of Group I and charge as an expense of the Group I Pooling Tier
REMIC-A all expenses of the Trust relating to Group I for such Distribution
Date. Such expense (other than Servicing Fees and Trustee Fees) shall be
allocated in the same manner as Realized Losses in Loan Group I.
On each Distribution Date, the interest distributable in respect of
the Group I Mortgage Loans from the related Subgroup for such Distribution Date
shall be deemed to be distributed to the Group I Pooling Tier REMIC-A Regular
Interests at the rates shown above.
On each Distribution Date, Realized Losses for Subgroup I-1,
Subsequent Recoveries for Subgroup I-1 and payments of principal in respect of
the Subgroup I-1 Mortgage Loans shall be allocated to the outstanding Group I
Pooling Tier REMIC-A Regular Interest related to Subgroup I-1 with the lowest
numerical denomination until the Group I Pooling Tier REMIC-A Principal Amount
of such interest or interests, as the case may be, is reduced to zero, provided
that, with respect to Group I Pooling Tier REMIC-A Regular Interests with the
same numerical denomination, such Realized Losses for Subgroup I-1 and payments
of principal shall be allocated pro rata between such Group I Pooling Tier
REMIC-A Regular Interests.
On each Distribution Date, Realized Losses for Subgroup I-2,
Subsequent Recoveries for Subgroup I-2 and payments of principal in respect of
the Subgroup I-2 Mortgage Loans shall be allocated to the outstanding Group I
Pooling Tier REMIC-A Regular Interest related to Subgroup I-2 with the lowest
numerical denomination until the Group I Pooling Tier REMIC-A Principal Amount
of such interest or interests, as the case may be, is reduced to zero, provided
that, with respect to Group I Pooling Tier REMIC-A Regular Interests with the
same numerical denomination, such Realized Losses for Subgroup I-2 and payments
of principal shall be allocated pro rata between such Group I Pooling Tier
REMIC-A Regular Interests.
Group I Pooling Tier REMIC-B
The Group I Pooling Tier REMIC-B shall issue the following interests
in the Group I Pooling Tier REMIC-B, and each such interest, other than the
Class PTI-B-R Interest, is hereby designated as a regular interest in the Group
I Pooling Tier REMIC-B. Pooling Tier REMIC-B Interests with a "I-1-" in their
designation shall relate to the Subgroup I-1 Mortgage Loans and Pooling Tier
REMIC-B Interests with a "-2-" in their designation shall relate to the Subgroup
I-2 Mortgage Loans. The Class PTI-B-R Interest is hereby designated as the sole
Class of residual interest in the Group I Pooling Tier REMIC-B and shall be
represented by the Class I-R Certificates.
Group I
Group I Pooling Group I Group I
Pooling Tier Group I Corresponding Corresponding
Group I Tier REMIC-B Corresponding Pooling Tier Scheduled
Pooling Tier REMIC-B Initial Pooling Tier REMIC-A Crossover
REMIC-B Interest Principal REMIC-B IO Regular Distribution
Interest Rate Amount Interest Interest Date
-------------------- -------- -------------- -------------------- ------------------ -----------------
Class PTB-I-1-1 (1) $ 3,010,817.75 N/A N/A N/A
Class PTB-I-1-2A (2) $ 6,752,905.70 Class PTB-I-1-IO-2 N/A N/A
Class PTB-I-1-2B (3) $ 6,752,905.70 N/A N/A N/A
Class PTB-I-1-3A (2) $ 6,554,797.58 Class PTB-I-1-IO-3 N/A N/A
Class PTB-I-1-3B (3) $ 6,554,797.58 N/A N/A N/A
Class PTB-I-1-4A (2) $ 6,362,499.46 Class PTB-I-1-IO-4 N/A N/A
Class PTB-I-1-4B (3) $ 6,362,499.46 N/A N/A N/A
Class PTB-I-1-5A (2) $ 6,175,840.97 Class PTB-I-1-IO-5 N/A N/A
Class PTB-I-1-5B (3) $ 6,175,840.97 N/A N/A N/A
Class PTB-I-1-6A (2) $ 5,994,656.77 Class PTB-I-1-IO-6 N/A N/A
Class PTB-I-1-6B (3) $ 5,994,656.77 N/A N/A N/A
Class PTB-I-1-7A (2) $ 5,818,786.35 Class PTB-I-1-IO-7 N/A N/A
Class PTB-I-1-7B (3) $ 5,818,786.35 N/A N/A N/A
Class PTB-I-1-8A (2) $ 5,648,073.91 Class PTB-I-1-IO-8 N/A N/A
Class PTB-I-1-8B (3) $ 5,648,073.91 N/A N/A N/A
Class PTB-I-1-9A (2) $ 5,482,368.21 Class PTB-I-1-IO-9 N/A N/A
Class PTB-I-1-9B (3) $ 5,482,368.21 N/A N/A N/A
Class PTB-I-1-10A (2) $ 5,321,522.46 Class PTB-I-1-IO-10 N/A N/A
Class PTB-I-1-10B (3) $ 5,321,522.46 N/A N/A N/A
Class PTB-I-1-11A (2) $ 5,165,394.16 Class PTB-I-1-IO-11 N/A N/A
Class PTB-I-1-11B (3) $ 5,165,394.16 N/A N/A N/A
Class PTB-I-1-12A (2) $ 5,013,844.98 Class PTB-I-1-IO-12 N/A N/A
Class PTB-I-1-12B (3) $ 5,013,844.98 N/A N/A N/A
Class PTB-I-1-13A (2) $ 4,866,740.66 Class PTB-I-1-IO-13 N/A N/A
Class PTB-I-1-13B (3) $ 4,866,740.66 N/A N/A N/A
Class PTB-I-1-14A (2) $ 4,723,950.86 Class PTB-I-1-IO-14 N/A N/A
Class PTB-I-1-14B (3) $ 4,723,950.86 N/A N/A N/A
Class PTB-I-1-15A (2) $ 4,585,349.09 Class PTB-I-1-IO-15 N/A N/A
Class PTB-I-1-15B (3) $ 4,585,349.09 N/A N/A N/A
Class PTB-I-1-16A (2) $ 4,450,812.54 Class PTB-I-1-IO-16 N/A N/A
Class PTB-I-1-16B (3) $ 4,450,812.54 N/A N/A N/A
Class PTB-I-1-17A (2) $ 4,320,222.01 Class PTB-I-1-IO-17 N/A N/A
Class PTB-I-1-17B (3) $ 4,320,222.01 N/A N/A N/A
Class PTB-I-1-18A (2) $ 4,193,461.79 Class PTB-I-1-IO-18 N/A N/A
Class PTB-I-1-18B (3) $ 4,193,461.79 N/A N/A N/A
Class PTB-I-1-19A (2) $ 4,070,419.57 Class PTB-I-1-IO-19 N/A N/A
Class PTB-I-1-19B (3) $ 4,070,419.57 N/A N/A N/A
Class PTB-I-1-20A (2) $ 3,950,986.33 Class PTB-I-1-IO-20 N/A N/A
Class PTB-I-1-20B (3) $ 3,950,986.33 N/A N/A N/A
Class PTB-I-1-21A (2) $ 3,835,056.24 Class PTB-I-1-IO-21 N/A N/A
Class PTB-I-1-21B (3) $ 3,835,056.24 N/A N/A N/A
Class PTB-I-1-22A (2) $ 3,722,526.57 Class PTB-I-1-IO-22 N/A N/A
Class PTB-I-1-22B (3) $ 3,722,526.57 N/A N/A N/A
Class PTB-I-1-23A (2) $ 3,613,297.62 Class PTB-I-1-IO-23 N/A N/A
Class PTB-I-1-23B (3) $ 3,613,297.62 N/A N/A N/A
Class PTB-I-1-24A (2) $ 3,507,272.61 Class PTB-I-1-IO-24 N/A N/A
Class PTB-I-1-24B (3) $ 3,507,272.61 N/A N/A N/A
Class PTB-I-1-25A (2) $ 3,404,357.56 Class PTB-I-1-IO-25 N/A N/A
Class PTB-I-1-25B (3) $ 3,404,357.56 N/A N/A N/A
Class PTB-I-1-26A (2) $ 3,335,398.11 Class PTB-I-1-IO-26 N/A N/A
Class PTB-I-1-26B (3) $ 3,335,398.11 N/A N/A N/A
Class PTB-I-1-27A (2) $ 3,206,589.30 Class PTB-I-1-IO-27 N/A N/A
Class PTB-I-1-27B (3) $ 3,206,589.30 N/A N/A N/A
Class PTB-I-1-28A (2) $ 3,112,494.16 Class PTB-I-1-IO-28 N/A N/A
Class PTB-I-1-28B (3) $ 3,112,494.16 N/A N/A N/A
Class PTB-I-1-29A (2) $ 3,036,813.85 Class PTB-I-1-IO-29 N/A N/A
Class PTB-I-1-29B (3) $ 3,036,813.85 N/A N/A N/A
Class PTB-I-1-30A (2) $ 2,932,029.71 Class PTB-I-1-IO-30 N/A N/A
Class PTB-I-1-30B (3) $ 2,932,029.71 N/A N/A N/A
Class PTB-I-1-31A (2) $ 3,066,261.09 Class PTB-I-1-IO-31 N/A N/A
Class PTB-I-1-31B (3) $ 3,066,261.09 N/A N/A N/A
Class PTB-I-1-32A (2) $ 3,118,774.45 Class PTB-I-1-IO-32 N/A N/A
Class PTB-I-1-32B (3) $ 3,118,774.45 N/A N/A N/A
Class PTB-I-1-33A (2) $ 3,035,336.91 Class PTB-I-1-IO-33 N/A N/A
Class PTB-I-1-33B (3) $ 3,035,336.91 N/A N/A N/A
Class PTB-I-1-34A (2) $ 2,656,634.72 Class PTB-I-1-IO-34 N/A N/A
Class PTB-I-1-34B (3) $ 2,656,634.72 N/A N/A N/A
Class PTB-I-1-35A (2) $ 3,651,649.65 Class PTB-I-1-IO-35 N/A N/A
Class PTB-I-1-35B (3) $ 3,651,649.65 N/A N/A N/A
Class PTB-I-1-36A (2) $ 2,772,528.45 Class PTB-I-1-IO-36 N/A N/A
Class PTB-I-1-36B (3) $ 2,772,528.45 N/A N/A N/A
Class PTB-I-1-37A (2) $ 2,308,793.10 Class PTB-I-1-IO-37 N/A N/A
Class PTB-I-1-37B (3) $ 2,308,793.10 N/A N/A N/A
Class PTB-I-1-38A (2) $ 2,241,037.88 Class PTB-I-1-IO-38 N/A N/A
Class PTB-I-1-38B (3) $ 2,241,037.88 N/A N/A N/A
Class PTB-I-1-39A (2) $ 2,175,270.28 Class PTB-I-1-IO-39 N/A N/A
Class PTB-I-1-39B (3) $ 2,175,270.28 N/A N/A N/A
Class PTB-I-1-40A (2) $ 2,111,432.01 Class PTB-I-1-IO-40 N/A N/A
Class PTB-I-1-40B (3) $ 2,111,432.01 N/A N/A N/A
Class PTB-I-1-41A (2) $ 2,049,466.50 Class PTB-I-1-IO-41 N/A N/A
Class PTB-I-1-41B (3) $ 2,049,466.50 N/A N/A N/A
Class PTB-I-1-42A (2) $ 1,989,318.82 Class PTB-I-1-IO-42 N/A N/A
Class PTB-I-1-42B (3) $ 1,989,318.82 N/A N/A N/A
Class PTB-I-1-43A (2) $ 1,930,935.66 Class PTB-I-1-IO-43 N/A N/A
Class PTB-I-1-43B (3) $ 1,930,935.66 N/A N/A N/A
Class PTB-I-1-44A (2) $ 1,874,265.28 Class PTB-I-1-IO-44 N/A N/A
Class PTB-I-1-44B (3) $ 1,874,265.28 N/A N/A N/A
Class PTB-I-1-45A (2) $ 1,819,257.44 Class PTB-I-1-IO-45 N/A N/A
Class PTB-I-1-45B (3) $ 1,819,257.44 N/A N/A N/A
Class PTB-I-1-46A (2) $ 1,765,863.39 Class PTB-I-1-IO-46 N/A N/A
Class PTB-I-1-46B (3) $ 1,765,863.39 N/A N/A N/A
Class PTB-I-1-47A (2) $ 1,714,035.79 Class PTB-I-1-IO-47 N/A N/A
Class PTB-I-1-47B (3) $ 1,714,035.79 N/A N/A N/A
Class PTB-I-1-48A (2) $ 1,663,728.70 Class PTB-I-1-IO-48 N/A N/A
Class PTB-I-1-48B (3) $ 1,663,728.70 N/A N/A N/A
Class PTB-I-1-49A (2) $ 1,614,897.53 Class PTB-I-1-IO-49 N/A N/A
Class PTB-I-1-49B (3) $ 1,614,897.53 N/A N/A N/A
Class PTB-I-1-50A (2) $ 1,567,499.00 Class PTB-I-1-IO-50 N/A N/A
Class PTB-I-1-50B (3) $ 1,567,499.00 N/A N/A N/A
Class PTB-I-1-51A (2) $ 1,521,491.08 Class PTB-I-1-IO-51 N/A N/A
Class PTB-I-1-51B (3) $ 1,521,491.08 N/A N/A N/A
Class PTB-I-1-52A (2) $ 1,483,511.61 Class PTB-I-1-IO-52 N/A N/A
Class PTB-I-1-52B (3) $ 1,483,511.61 N/A N/A N/A
Class PTB-I-1-53A (2) $ 1,477,753.70 Class PTB-I-1-IO-53 N/A N/A
Class PTB-I-1-53B (3) $ 1,477,753.70 N/A N/A N/A
Class PTB-I-1-54A (2) $ 1,400,040.66 Class PTB-I-1-IO-54 N/A N/A
Class PTB-I-1-54B (3) $ 1,400,040.66 N/A N/A N/A
Class PTB-I-1-55A (2) $ 1,375,501.96 Class PTB-I-1-IO-55 N/A N/A
Class PTB-I-1-55B (3) $ 1,375,501.96 N/A N/A N/A
Class PTB-I-1-56A (2) $ 1,368,004.90 Class PTB-I-1-IO-56 N/A N/A
Class PTB-I-1-56B (3) $ 1,368,004.90 N/A N/A N/A
Class PTB-I-1-57A (2) $ 1,464,622.63 Class PTB-I-1-IO-57 N/A N/A
Class PTB-I-1-57B (3) $ 1,464,622.63 N/A N/A N/A
Class PTB-I-1-58A (2) $ 3,277,817.86 Class PTB-I-1-IO-58 N/A N/A
Class PTB-I-1-58B (3) $ 3,277,817.86 N/A N/A N/A
Class PTB-I-1-59A (2) $10,636,331.89 Class PTB-I-1-IO-59 N/A N/A
Class PTB-I-1-59B (3) $10,636,331.89 N/A N/A N/A
Class PTB-I-1-60A (2) $24,100,833.15 Class PTB-I-1-IO-60 N/A N/A
Class PTB-I-1-60B (3) $24,100,833.15 N/A N/A N/A
Class PTB-I-1-61A (2) $ 728,858.57 Class PTB-I-1-IO-61 N/A N/A
Class PTB-I-1-61B (3) $ 728,858.57 N/A N/A N/A
Class PTB-I-1-62A (2) $ 87,608.58 Class PTB-I-1-IO-62 N/A N/A
Class PTB-I-1-62B (3) $ 87,608.58 N/A N/A N/A
Class PTB-I-1-63A (2) $ 85,031.77 Class PTB-I-1-IO-63 N/A N/A
Class PTB-I-1-63B (3) $ 85,031.77 N/A N/A N/A
Class PTB-I-1-64A (2) $ 82,530.69 Class PTB-I-1-IO-64 N/A N/A
Class PTB-I-1-64B (3) $ 82,530.69 N/A N/A N/A
Class PTB-I-1-65A (2) $ 80,103.12 Class PTB-I-1-IO-65 N/A N/A
Class PTB-I-1-65B (3) $ 80,103.12 N/A N/A N/A
Class PTB-I-1-66A (2) $ 77,746.90 Class PTB-I-1-IO-66 N/A N/A
Class PTB-I-1-66B (3) $ 77,746.90 N/A N/A N/A
Class PTB-I-1-67A (2) $ 75,459.93 Class PTB-I-1-IO-67 N/A N/A
Class PTB-I-1-67B (3) $ 75,459.93 N/A N/A N/A
Class PTB-I-1-68A (2) $ 73,240.17 Class PTB-I-1-IO-68 N/A N/A
Class PTB-I-1-68B (3) $ 73,240.17 N/A N/A N/A
Class PTB-I-1-69A (2) $ 71,085.66 Class PTB-I-1-IO-69 N/A N/A
Class PTB-I-1-69B (3) $ 71,085.66 N/A N/A N/A
Class PTB-I-1-70A (2) $ 68,994.49 Class PTB-I-1-IO-70 N/A N/A
Class PTB-I-1-70B (3) $ 68,994.49 N/A N/A N/A
Class PTB-I-1-71A (2) $ 66,964.78 Class PTB-I-1-IO-71 N/A N/A
Class PTB-I-1-71B (3) $ 66,964.78 N/A N/A N/A
Class PTB-I-1-72A (2) $ 74,369.28 Class PTB-I-1-IO-72 N/A N/A
Class PTB-I-1-72B (3) $ 74,369.28 N/A N/A N/A
Class PTB-I-1-73A (2) $ 126,746.36 Class PTB-I-1-IO-73 N/A N/A
Class PTB-I-1-73B (3) $ 126,746.36 N/A N/A N/A
Class PTB-I-1-74A (2) $ 59,065.41 Class PTB-I-1-IO-74 N/A N/A
Class PTB-I-1-74B (3) $ 59,065.41 N/A N/A N/A
Class PTB-I-1-75A (2) $ 73,184.42 Class PTB-I-1-IO-75 N/A N/A
Class PTB-I-1-75B (3) $ 73,184.42 N/A N/A N/A
Class PTB-I-1-76A (2) $ 55,169.42 Class PTB-I-1-IO-76 N/A N/A
Class PTB-I-1-76B (3) $ 55,169.42 N/A N/A N/A
Class PTB-I-1-77A (2) $ 62,975.68 Class PTB-I-1-IO-77 N/A N/A
Class PTB-I-1-77B (3) $ 62,975.68 N/A N/A N/A
Class PTB-I-1-78A (2) $ 51,679.80 Class PTB-I-1-IO-78 N/A N/A
Class PTB-I-1-78B (3) $ 51,679.80 N/A N/A N/A
Class PTB-I-1-79A (2) $ 100,504.28 Class PTB-I-1-IO-79 N/A N/A
Class PTB-I-1-79B (3) $ 100,504.28 N/A N/A N/A
Class PTB-I-1-80A (2) $ 181,963.20 Class PTB-I-1-IO-80 N/A N/A
Class PTB-I-1-80B (3) $ 181,963.20 N/A N/A N/A
Class PTB-I-1-81A (2) $ 203,444.44 Class PTB-I-1-IO-81 N/A N/A
Class PTB-I-1-81B (3) $ 203,444.44 N/A N/A N/A
Class PTB-I-1-82A (2) $ 545,273.65 Class PTB-I-1-IO-82 N/A N/A
Class PTB-I-1-82B (3) $ 545,273.65 N/A N/A N/A
Class PTB-I-1-83A (2) $ 470,493.70 Class PTB-I-1-IO-83 N/A N/A
Class PTB-I-1-83B (3) $ 470,493.70 N/A N/A N/A
Class PTB-I-1-84A (2) $ 5,974.96 Class PTB-I-1-IO-84 N/A N/A
Class PTB-I-1-84B (3) $ 5,974.96 N/A N/A N/A
Class PTB-I-1-85A (2) $ 5,798.62 Class PTB-I-1-IO-85 N/A N/A
Class PTB-I-1-85B (3) $ 5,798.62 N/A N/A N/A
Class PTB-I-1-86A (2) $ 5,627.48 Class PTB-I-1-IO-86 N/A N/A
Class PTB-I-1-86B (3) $ 5,627.48 N/A N/A N/A
Class PTB-I-1-87A (2) $ 5,461.38 Class PTB-I-1-IO-87 N/A N/A
Class PTB-I-1-87B (3) $ 5,461.38 N/A N/A N/A
Class PTB-I-1-88A (2) $ 5,300.18 Class PTB-I-1-IO-88 N/A N/A
Class PTB-I-1-88B (3) $ 5,300.18 N/A N/A N/A
Class PTB-I-1-89A (2) $ 5,143.73 Class PTB-I-1-IO-89 N/A N/A
Class PTB-I-1-89B (3) $ 5,143.73 N/A N/A N/A
Class PTB-I-1-90A (2) $ 4,991.89 Class PTB-I-1-IO-90 N/A N/A
Class PTB-I-1-90B (3) $ 4,991.89 N/A N/A N/A
Class PTB-I-1-91A (2) $ 4,844.53 Class PTB-I-1-IO-91 N/A N/A
Class PTB-I-1-91B (3) $ 4,844.53 N/A N/A N/A
Class PTB-I-1-92A (2) $ 4,701.51 Class PTB-I-1-IO-92 N/A N/A
Class PTB-I-1-92B (3) $ 4,701.51 N/A N/A N/A
Class PTB-I-1-93A (2) $ 4,562.70 Class PTB-I-1-IO-93 N/A N/A
Class PTB-I-1-93B (3) $ 4,562.70 N/A N/A N/A
Class PTB-I-1-94A (2) $ 4,427.99 Class PTB-I-1-IO-94 N/A N/A
Class PTB-I-1-94B (3) $ 4,427.99 N/A N/A N/A
Class PTB-I-1-95A (2) $ 4,297.25 Class PTB-I-1-IO-95 N/A N/A
Class PTB-I-1-95B (3) $ 4,297.25 N/A N/A N/A
Class PTB-I-1-96A (2) $ 4,170.36 Class PTB-I-1-IO-96 N/A N/A
Class PTB-I-1-96B (3) $ 4,170.36 N/A N/A N/A
Class PTB-I-1-97A (2) $ 4,047.22 Class PTB-I-1-IO-97 N/A N/A
Class PTB-I-1-97B (3) $ 4,047.22 N/A N/A N/A
Class PTB-I-1-98A (2) $ 3,927.70 Class PTB-I-1-IO-98 N/A N/A
Class PTB-I-1-98B (3) $ 3,927.70 N/A N/A N/A
Class PTB-I-1-99A (2) $ 3,811.71 Class PTB-I-1-IO-99 N/A N/A
Class PTB-I-1-99B (3) $ 3,811.71 N/A N/A N/A
Class PTB-I-1-100A (2) $ 3,699.14 Class PTB-I-1-IO-100 N/A N/A
Class PTB-I-1-100B (3) $ 3,699.14 N/A10 N/A N/A
Class PTB-I-1-101A (2) $ 3,589.89 Class PTB-I-1-IO-101 N/A N/A
Class PTB-I-1-101B (3) $ 3,589.89 N/A N/A N/A
Class PTB-I-1-102A (2) $ 3,483.85 Class PTB-I-1-IO-102 N/A N/A
Class PTB-I-1-102B (3) $ 3,483.85 N/A N/A N/A
Class PTB-I-1-103A (2) $ 3,380.95 Class PTB-I-1-IO-103 N/A N/A
Class PTB-I-1-103B (3) $ 3,380.95 N/A N/A N/A
Class PTB-I-1-104A (2) $ 3,281.08 Class PTB-I-1-IO-104 N/A N/A
Class PTB-I-1-104B (3) $ 3,281.08 N/A N/A N/A
Class PTB-I-1-105A (2) $ 3,184.16 Class PTB-I-1-IO-105 N/A N/A
Class PTB-I-1-105B (3) $ 3,184.16 N/A N/A N/A
Class PTB-I-1-106A (2) $ 3,090.09 Class PTB-I-1-IO-106 N/A N/A
Class PTB-I-1-106B (3) $ 3,090.09 N/A N/A N/A
Class PTB-I-1-107A (2) $ 2,998.80 Class PTB-I-1-IO-107 N/A N/A
Class PTB-I-1-107B (3) $ 2,998.80 N/A N/A N/A
Class PTB-I-1-108A (2) $ 2,910.20 Class PTB-I-1-IO-108 N/A N/A
Class PTB-I-1-108B (3) $ 2,910.20 N/A N/A N/A
Class PTB-I-1-109A (2) $ 2,824.22 Class PTB-I-1-IO-109 N/A N/A
Class PTB-I-1-109B (3) $ 2,824.22 N/A N/A N/A
Class PTB-I-1-110A (2) $ 3,374.33 Class PTB-I-1-IO-110 N/A N/A
Class PTB-I-1-110B (3) $ 3,374.33 N/A10 N/A N/A
Class PTB-I-1-111A (2) $ 3,625.03 Class PTB-I-1-IO-111 N/A N/A
Class PTB-I-1-111B (3) $ 3,625.03 N/A N/A N/A
Class PTB-I-1-112A (2) $ 5,863.46 Class PTB-I-1-IO-112 N/A N/A
Class PTB-I-1-112B (3) $ 5,863.46 N/A N/A N/A
Class PTB-I-1-113A (2) $ 5,828.09 Class PTB-I-1-IO-113 N/A N/A
Class PTB-I-1-113B (3) $ 5,828.09 N/A N/A N/A
Class PTB-I-1-114A (2) $ 2,176.61 Class PTB-I-1-IO-114 N/A N/A
Class PTB-I-1-114B (3) $ 2,176.61 N/A N/A N/A
Class PTB-I-1-115A (2) $ 3,039.69 Class PTB-I-1-IO-115 N/A N/A
Class PTB-I-1-115B (3) $ 3,039.69 N/A N/A N/A
Class PTB-I-1-116A (2) $ 6,884.46 Class PTB-I-1-IO-116 N/A N/A
Class PTB-I-1-116B (3) $ 6,884.46 N/A N/A N/A
Class PTB-I-1-117A (2) $ 37,186.35 Class PTB-I-1-IO-117 N/A N/A
Class PTB-I-1-117B (3) $ 37,186.35 N/A N/A N/A
Class PTB-I-1-118A (2) $ 10,619.98 Class PTB-I-1-IO-118 N/A N/A
Class PTB-I-1-118B (3) $ 10,619.98 N/A N/A N/A
Class PTB-I-1-119A (2) $ 13,958.55 Class PTB-I-1-IO-119 N/A N/A
Class PTB-I-1-119B (3) $ 13,958.55 N/A N/A N/A
Class PTB-I-1-IO-2 (4) (4) N/A Class PTA-I-1-2A April 2007
Class PTB-I-1-IO-3 (4) (4) N/A Class PTA-I-1-3A May 2007
Class PTB-I-1-IO-4 (4) (4) N/A Class PTA-I-1-4A June 2007
Class PTB-I-1-IO-5 (4) (4) N/A Class PTA-I-1-5A July 2007
Class PTB-I-1-IO-6 (4) (4) N/A Class PTA-I-1-6A August 2007
Class PTB-I-1-IO-7 (4) (4) N/A Class PTA-I-1-7A September 2007
Class PTB-I-1-IO-8 (4) (4) N/A Class PTA-I-1-8A October 2007
Class PTB-I-1-IO-9 (4) (4) N/A Class PTA-I-1-9A November 2007
Class PTB-I-1-IO-10 (4) (4) N/A Class PTA-I-1-10A December 2007
Class PTB-I-1-IO-11 (4) (4) N/A Class PTA-I-1-11A January 2008
Class PTB-I-1-IO-12 (4) (4) N/A Class PTA-I-1-12A February 2008
Class PTB-I-1-IO-13 (4) (4) N/A Class PTA-I-1-13A March 2008
Class PTB-I-1-IO-14 (4) (4) N/A Class PTA-I-1-14A April 2008
Class PTB-I-1-IO-15 (4) (4) N/A Class PTA-I-1-15A May 2008
Class PTB-I-1-IO-16 (4) (4) N/A Class PTA-I-1-16A June 2008
Class PTB-I-1-IO-17 (4) (4) N/A Class PTA-I-1-17A July 2008
Class PTB-I-1-IO-18 (4) (4) N/A Class PTA-I-1-18A August 2008
Class PTB-I-1-IO-19 (4) (4) N/A Class PTA-I-1-19A September 2008
Class PTB-I-1-IO-20 (4) (4) N/A Class PTA-I-1-20A October 2008
Class PTB-I-1-IO-21 (4) (4) N/A Class PTA-I-1-21A November 2008
Class PTB-I-1-IO-22 (4) (4) N/A Class PTA-I-1-22A December 2008
Class PTB-I-1-IO-23 (4) (4) N/A Class PTA-I-1-23A January 2009
Class PTB-I-1-IO-24 (4) (4) N/A Class PTA-I-1-24A February 2009
Class PTB-I-1-IO-25 (4) (4) N/A Class PTA-I-1-25A March 2009
Class PTB-I-1-IO-26 (4) (4) N/A Class PTA-I-1-26A April 2009
Class PTB-I-1-IO-27 (4) (4) N/A Class PTA-I-1-27A May 2009
Class PTB-I-1-IO-28 (4) (4) N/A Class PTA-I-1-28A June 2009
Class PTB-I-1-IO-29 (4) (4) N/A Class PTA-I-1-29A July 2009
Class PTB-I-1-IO-30 (4) (4) N/A Class PTA-I-1-30A August 2009
Class PTB-I-1-IO-31 (4) (4) N/A Class PTA-I-1-31A September 2009
Class PTB-I-1-IO-32 (4) (4) N/A Class PTA-I-1-32A October 2009
Class PTB-I-1-IO-33 (4) (4) N/A Class PTA-I-1-33A November 2009
Class PTB-I-1-IO-34 (4) (4) N/A Class PTA-I-1-34A December 2009
Class PTB-I-1-IO-35 (4) (4) N/A Class PTA-I-1-35A January 2010
Class PTB-I-1-IO-36 (4) (4) N/A Class PTA-I-1-36A February 2010
Class PTB-I-1-IO-37 (4) (4) N/A Class PTA-I-1-37A March 2010
Class PTB-I-1-IO-38 (4) (4) N/A Class PTA-I-1-38A April 2010
Class PTB-I-1-IO-39 (4) (4) N/A Class PTA-I-1-39A May 2010
Class PTB-I-1-IO-40 (4) (4) N/A Class PTA-I-1-40A June 2010
Class PTB-I-1-IO-41 (4) (4) N/A Class PTA-I-1-41A July 2010
Class PTB-I-1-IO-42 (4) (4) N/A Class PTA-I-1-42A August 2010
Class PTB-I-1-IO-43 (4) (4) N/A Class PTA-I-1-43A September 2010
Class PTB-I-1-IO-44 (4) (4) N/A Class PTA-I-1-44A October 2010
Class PTB-I-1-IO-45 (4) (4) N/A Class PTA-I-1-45A November 2010
Class PTB-I-1-IO-46 (4) (4) N/A Class PTA-I-1-46A December 2010
Class PTB-I-1-IO-47 (4) (4) N/A Class PTA-I-1-47A January 2011
Class PTB-I-1-IO-48 (4) (4) N/A Class PTA-I-1-48A February 2011
Class PTB-I-1-IO-49 (4) (4) N/A Class PTA-I-1-49A March 2011
Class PTB-I-1-IO-50 (4) (4) N/A Class PTA-I-1-50A April 2011
Class PTB-I-1-IO-51 (4) (4) N/A Class PTA-I-1-51A May 2011
Class PTB-I-1-IO-52 (4) (4) N/A Class PTA-I-1-52A June 2011
Class PTB-I-1-IO-53 (4) (4) N/A Class PTA-I-1-53A July 2011
Class PTB-I-1-IO-54 (4) (4) N/A Class PTA-I-1-54A August 2011
Class PTB-I-1-IO-55 (4) (4) N/A Class PTA-I-1-55A September 2011
Class PTB-I-1-IO-56 (4) (4) N/A Class PTA-I-1-56A October 20011
Class PTB-I-1-IO-57 (4) (4) N/A Class PTA-I-1-57A November 2011
Class PTB-I-1-IO-58 (4) (4) N/A Class PTA-I-1-58A December 2011
Class PTB-I-1-IO-59 (4) (4) N/A Class PTA-I-1-59A January 2012
Class PTB-I-1-IO-60 (4) (4) N/A Class PTA-I-1-60A February 2012
Class PTB-I-1-IO-61 (4) (4) N/A Class PTA-I-1-61A March 2012
Class PTB-I-1-IO-62 (4) (4) N/A Class PTA-I-1-62A April 2012
Class PTB-I-1-IO-63 (4) (4) N/A Class PTA-I-1-63A May 2012
Class PTB-I-1-IO-64 (4) (4) N/A Class PTA-I-1-64A June 2012
Class PTB-I-1-IO-65 (4) (4) N/A Class PTA-I-1-65A July 2012
Class PTB-I-1-IO-66 (4) (4) N/A Class PTA-I-1-66A August 2012
Class PTB-I-1-IO-67 (4) (4) N/A Class PTA-I-1-67A September 2012
Class PTB-I-1-IO-68 (4) (4) N/A Class PTA-I-1-68A October 2012
Class PTB-I-1-IO-69 (4) (4) N/A Class PTA-I-1-69A November 2012
Class PTB-I-1-IO-70 (4) (4) N/A Class PTA-I-1-70A December 2012
Class PTB-I-1-IO-71 (4) (4) N/A Class PTA-I-1-71A January 2013
Class PTB-I-1-IO-72 (4) (4) N/A Class PTA-I-1-72A February 2013
Class PTB-I-1-IO-73 (4) (4) N/A Class PTA-I-1-73A March 2013
Class PTB-I-1-IO-74 (4) (4) N/A Class PTA-I-1-74A April 2013
Class PTB-I-1-IO-75 (4) (4) N/A Class PTA-I-1-75A May 2013
Class PTB-I-1-IO-76 (4) (4) N/A Class PTA-I-1-76A June 2013
Class PTB-I-1-IO-77 (4) (4) N/A Class PTA-I-1-77A July 2013
Class PTB-I-1-IO-78 (4) (4) N/A Class PTA-I-1-78A August 2013
Class PTB-I-1-IO-79 (4) (4) N/A Class PTA-I-1-79A September 2013
Class PTB-I-1-IO-80 (4) (4) N/A Class PTA-I-1-80A October 2013
Class PTB-I-1-IO-81 (4) (4) N/A Class PTA-I-1-81A November 2013
Class PTB-I-1-IO-82 (4) (4) N/A Class PTA-I-1-82A December 2013
Class PTB-I-1-IO-83 (4) (4) N/A Class PTA-I-1-83A January 2014
Class PTB-I-1-IO-84 (4) (4) N/A Class PTA-I-1-84A February 2014
Class PTB-I-1-IO-85 (4) (4) N/A Class PTA-I-1-85A March 2014
Class PTB-I-1-IO-86 (4) (4) N/A Class PTA-I-1-86A April 2014
Class PTB-I-1-IO-87 (4) (4) N/A Class PTA-I-1-87A May 2014
Class PTB-I-1-IO-88 (4) (4) N/A Class PTA-I-1-88A June 2014
Class PTB-I-1-IO-89 (4) (4) N/A Class PTA-I-1-89A July 2014
Class PTB-I-1-IO-90 (4) (4) N/A Class PTA-I-1-90A August 2014
Class PTB-I-1-IO-91 (4) (4) N/A Class PTA-I-1-91A September 2014
Class PTB-I-1-IO-92 (4) (4) N/A Class PTA-I-1-92A October 2014
Class PTB-I-1-IO-93 (4) (4) N/A Class PTA-I-1-93A November 2014
Class PTB-I-1-IO-94 (4) (4) N/A Class PTA-I-1-94A December 2014
Class PTB-I-1-IO-95 (4) (4) N/A Class PTA-I-1-95A January 2015
Class PTB-I-1-IO-96 (4) (4) N/A Class PTA-I-1-96A February 2015
Class PTB-I-1-IO-97 (4) (4) N/A Class PTA-I-1-97A March 2015
Class PTB-I-1-IO-98 (4) (4) N/A Class PTA-I-1-98A April 2015
Class PTB-I-1-IO-99 (4) (4) N/A Class PTA-I-1-99A May 2015
Class PTB-I-1-IO-100 (4) (4) N/A Class PTA-I-1-100A June 2015
Class PTB-I-1-IO-101 (4) (4) N/A Class PTA-I-1-101A July 2015
Class PTB-I-1-IO-102 (4) (4) N/A Class PTA-I-1-102A August 2015
Class PTB-I-1-IO-103 (4) (4) N/A Class PTA-I-1-103A September 2015
Class PTB-I-1-IO-104 (4) (4) N/A Class PTA-I-1-104A October 2015
Class PTB-I-1-IO-105 (4) (4) N/A Class PTA-I-1-105A November 2015
Class PTB-I-1-IO-106 (4) (4) N/A Class PTA-I-1-106A December 2015
Class PTB-I-1-IO-107 (4) (4) N/A Class PTA-I-1-107A January 2016
Class PTB-I-1-IO-108 (4) (4) N/A Class PTA-I-1-108A February 2016
Class PTB-I-1-IO-109 (4) (4) N/A Class PTA-I-1-109A March 2016
Class PTB-I-1-IO-110 (4) (4) N/A Class PTA-I-1-110A April 2016
Class PTB-I-1-IO-111 (4) (4) N/A Class PTA-I-1-111A May 2016
Class PTB-I-1-IO-112 (4) (4) N/A Class PTA-I-1-112A June 2016
Class PTB-I-1-IO-113 (4) (4) N/A Class PTA-I-1-113A July 2016
Class PTB-I-1-IO-114 (4) (4) N/A Class PTA-I-1-114A August 2016
Class PTB-I-1-IO-115 (4) (4) N/A Class PTA-I-1-115A September 2016
Class PTB-I-1-IO-116 (4) (4) N/A Class PTA-I-1-116A October 2016
Class PTB-I-1-IO-117 (4) (4) N/A Class PTA-I-1-17A November 2016
Class PTB-I-1-IO-118 (4) (4) N/A Class PTA-I-1-118A December 2016
Class PTB-I-1-IO-119 (4) (4) N/A Class PTA-I-1-119A January 2017
Class PTB-I-2-1 (5) $ 3,983,478.13 N/A N/A N/A
Class PTB-I-2-2A (6) $ 8,934,467.12 Class PTB-I-2-IO-2 N/A N/A
Class PTB-I-2-2B (7) $ 8,934,467.12 N/A N/A N/A
Class PTB-I-2-3A (6) $ 8,672,359.14 Class PTB-I-2-IO-3 N/A N/A
Class PTB-I-2-3B (7) $ 8,672,359.14 N/A N/A N/A
Class PTB-I-2-4A (6) $ 8,170,978.61 Class PTB-I-2-IO-4 N/A N/A
Class PTB-I-2-4B (7) $ 8,170,978.61 N/A N/A N/A
Class PTB-I-2-5A (6) $ 7,931,261.91 Class PTB-I-2-IO-5 N/A N/A
Class PTB-I-2-5B (7) $ 7,931,261.91 N/A N/A N/A
Class PTB-I-2-6A (6) $ 7,472,713.65 Class PTB-I-2-IO-6 N/A N/A
Class PTB-I-2-6B (7) $ 7,472,713.65 N/A N/A N/A
Class PTB-I-2-7A (6) $ 7,253,475.87 Class PTB-I-2-IO-7 N/A N/A
Class PTB-I-2-7B (7) $ 7,253,475.87 N/A N/A N/A
Class PTB-I-2-8A (6) $ 6,834,101.69 Class PTB-I-2-IO-8 N/A N/A
Class PTB-I-2-8B (7) $ 6,834,101.69 N/A N/A N/A
Class PTB-I-2-9A (6) $ 6,633,593.76 Class PTB-I-2-IO-9 N/A N/A
Class PTB-I-2-9B (7) $ 6,633,593.76 N/A N/A N/A
Class PTB-I-2-10A (6) $ 6,250,047.84 Class PTB-I-2-IO-10 N/A N/A
Class PTB-I-2-10B (7) $ 6,250,047.84 N/A N/A N/A
Class PTB-I-2-11A (6) $ 6,066,670.04 Class PTB-I-2-IO-11 N/A N/A
Class PTB-I-2-11B (7) $ 6,066,670.04 N/A N/A N/A
Class PTB-I-2-12A (6) $ 5,715,892.27 Class PTB-I-2-IO-12 N/A N/A
Class PTB-I-2-12B (7) $ 5,715,892.27 N/A N/A N/A
Class PTB-I-2-13A (6) $ 5,548,181.50 Class PTB-I-2-IO-13 N/A N/A
Class PTB-I-2-13B (7) $ 5,548,181.50 N/A N/A N/A
Class PTB-I-2-14A (6) $ 5,227,373.07 Class PTB-I-2-IO-14 N/A N/A
Class PTB-I-2-14B (7) $ 5,227,373.07 N/A N/A N/A
Class PTB-I-2-15A (6) $ 5,073,991.16 Class PTB-I-2-IO-15 N/A N/A
Class PTB-I-2-15B (7) $ 5,073,991.16 N/A N/A N/A
Class PTB-I-2-16A (6) $ 4,780,592.27 Class PTB-I-2-IO-16 N/A N/A
Class PTB-I-2-16B (7) $ 4,780,592.27 N/A N/A N/A
Class PTB-I-2-17A (6) $ 4,640,315.32 Class PTB-I-2-IO-17 N/A N/A
Class PTB-I-2-17B (7) $ 4,640,315.32 N/A N/A N/A
Class PTB-I-2-18A (6) $ 4,412,915.88 Class PTB-I-2-IO-18 N/A N/A
Class PTB-I-2-18B (7) $ 4,412,915.88 N/A N/A N/A
Class PTB-I-2-19A (6) $ 4,242,494.70 Class PTB-I-2-IO-19 N/A N/A
Class PTB-I-2-19B (7) $ 4,242,494.70 N/A N/A N/A
Class PTB-I-2-20A (6) $ 4,017,872.41 Class PTB-I-2-IO-20 N/A N/A
Class PTB-I-2-20B (7) $ 4,017,872.41 N/A N/A N/A
Class PTB-I-2-21A (6) $ 3,879,237.20 Class PTB-I-2-IO-21 N/A N/A
Class PTB-I-2-21B (7) $ 3,879,237.20 N/A N/A N/A
Class PTB-I-2-22A (6) $ 4,126,310.80 Class PTB-I-2-IO-22 N/A N/A
Class PTB-I-2-22B (7) $ 4,126,310.80 N/A N/A N/A
Class PTB-I-2-23A (6) $ 4,015,918.33 Class PTB-I-2-IO-23 N/A N/A
Class PTB-I-2-23B (7) $ 4,015,918.33 N/A N/A N/A
Class PTB-I-2-24A (6) $ 4,831,334.13 Class PTB-I-2-IO-24 N/A N/A
Class PTB-I-2-24B (7) $ 4,831,334.13 N/A N/A N/A
Class PTB-I-2-25A (6) $ 3,668,208.23 Class PTB-I-2-IO-25 N/A N/A
Class PTB-I-2-25B (7) $ 3,668,208.23 N/A N/A N/A
Class PTB-I-2-26A (6) $ 2,965,016.85 Class PTB-I-2-IO-26 N/A N/A
Class PTB-I-2-26B (7) $ 2,965,016.85 N/A N/A N/A
Class PTB-I-2-27A (6) $ 2,878,002.69 Class PTB-I-2-IO-27 N/A N/A
Class PTB-I-2-27B (7) $ 2,878,002.69 N/A N/A N/A
Class PTB-I-2-28A (6) $ 2,711,557.34 Class PTB-I-2-IO-28 N/A N/A
Class PTB-I-2-28B (7) $ 2,711,557.34 N/A N/A N/A
Class PTB-I-2-29A (6) $ 2,631,978.64 Class PTB-I-2-IO-29 N/A N/A
Class PTB-I-2-29B (7) $ 2,631,978.64 N/A N/A N/A
Class PTB-I-2-30A (6) $ 2,479,756.46 Class PTB-I-2-IO-30 N/A N/A
Class PTB-I-2-30B (7) $ 2,479,756.46 N/A N/A N/A
Class PTB-I-2-31A (6) $ 2,406,978.05 Class PTB-I-2-IO-31 N/A N/A
Class PTB-I-2-31B (7) $ 2,406,978.05 N/A N/A N/A
Class PTB-I-2-32A (6) $ 2,267,763.99 Class PTB-I-2-IO-32 N/A N/A
Class PTB-I-2-32B (7) $ 2,267,763.99 N/A N/A N/A
Class PTB-I-2-33A (6) $ 2,201,204.94 Class PTB-I-2-IO-33 N/A N/A
Class PTB-I-2-33B (7) $ 2,201,204.94 N/A N/A N/A
Class PTB-I-2-34A (6) $ 2,073,887.73 Class PTB-I-2-IO-34 N/A N/A
Class PTB-I-2-34B (7) $ 2,073,887.73 N/A N/A N/A
Class PTB-I-2-35A (6) $ 2,013,016.71 Class PTB-I-2-IO-35 N/A N/A
Class PTB-I-2-35B (7) $ 2,013,016.71 N/A N/A N/A
Class PTB-I-2-36A (6) $ 1,955,149.74 Class PTB-I-2-IO-36 N/A N/A
Class PTB-I-2-36B (7) $ 1,955,149.74 N/A N/A N/A
Class PTB-I-2-37A (6) $ 1,852,331.10 Class PTB-I-2-IO-37 N/A N/A
Class PTB-I-2-37B (7) $ 1,852,331.10 N/A N/A N/A
Class PTB-I-2-38A (6) $ 1,809,946.02 Class PTB-I-2-IO-38 N/A N/A
Class PTB-I-2-38B (7) $ 1,809,946.02 N/A N/A N/A
Class PTB-I-2-39A (6) $ 1,937,776.62 Class PTB-I-2-IO-39 N/A N/A
Class PTB-I-2-39B (7) $ 1,937,776.62 N/A N/A N/A
Class PTB-I-2-40A (6) $14,072,454.40 Class PTB-I-2-IO-40 N/A N/A
Class PTB-I-2-40B (7) $14,072,454.40 N/A N/A N/A
Class PTB-I-2-41A (6) $31,886,733.03 Class PTB-I-2-IO-41 N/A N/A
Class PTB-I-2-41B (7) $31,886,733.03 N/A N/A N/A
Class PTB-I-2-42A (6) $ 115,910.99 Class PTB-I-2-IO-42 N/A N/A
Class PTB-I-2-42B (7) $ 115,910.99 N/A N/A N/A
Class PTB-I-2-43A (6) $ 112,501.73 Class PTB-I-2-IO-43 N/A N/A
Class PTB-I-2-43B (7) $ 112,501.73 N/A N/A N/A
Class PTB-I-2-44A (6) $ 105,980.85 Class PTB-I-2-IO-44 N/A N/A
Class PTB-I-2-44B (7) $ 105,980.85 N/A N/A N/A
Class PTB-I-2-45A (6) $ 102,863.44 Class PTB-I-2-IO-45 N/A N/A
Class PTB-I-2-45B (7) $ 102,863.44 N/A N/A N/A
Class PTB-I-2-46A (6) $ 96,900.79 Class PTB-I-2-IO-46 N/A N/A
Class PTB-I-2-46B (7) $ 96,900.79 N/A N/A N/A
Class PTB-I-2-47A (6) $ 94,050.26 Class PTB-I-2-IO-47 N/A N/A
Class PTB-I-2-47B (7) $ 94,050.26 N/A N/A N/A
Class PTB-I-2-48A (6) $ 88,598.10 Class PTB-I-2-IO-48 N/A N/A
Class PTB-I-2-48B (7) $ 88,598.10 N/A N/A N/A
Class PTB-I-2-49A (6) $ 98,394.66 Class PTB-I-2-IO-49 N/A N/A
Class PTB-I-2-49B (7) $ 98,394.66 N/A N/A N/A
Class PTB-I-2-50A (6) $ 78,146.81 Class PTB-I-2-IO-50 N/A N/A
Class PTB-I-2-50B (7) $ 78,146.81 N/A N/A N/A
Class PTB-I-2-51A (6) $ 96,827.03 Class PTB-I-2-IO-51 N/A N/A
Class PTB-I-2-51B (7) $ 96,827.03 N/A N/A N/A
Class PTB-I-2-52A (6) $ 83,320.30 Class PTB-I-2-IO-52 N/A N/A
Class PTB-I-2-52B (7) $ 83,320.30 N/A N/A N/A
Class PTB-I-2-53A (6) $ 68,375.23 Class PTB-I-2-IO-53 N/A N/A
Class PTB-I-2-53B (7) $ 68,375.23 N/A N/A N/A
Class PTB-I-2-54A (6) $ 240,747.35 Class PTB-I-2-IO-54 N/A N/A
Class PTB-I-2-54B (7) $ 240,747.35 N/A N/A N/A
Class PTB-I-2-55A (6) $ 269,168.23 Class PTB-I-2-IO-55 N/A N/A
Class PTB-I-2-55B (7) $ 269,168.23 N/A N/A N/A
Class PTB-I-2-56A (6) $ 622,489.15 Class PTB-I-2-IO-56 N/A N/A
Class PTB-I-2-56B (7) $ 622,489.15 N/A N/A N/A
Class PTB-I-2-57A (6) $ 7,905.20 Class PTB-I-2-IO-57 N/A N/A
Class PTB-I-2-57B (7) $ 7,905.20 N/A N/A N/A
Class PTB-I-2-58A (6) $ 7,445.47 Class PTB-I-2-IO-58 N/A N/A
Class PTB-I-2-58B (7) $ 7,445.47 N/A N/A N/A
Class PTB-I-2-59A (6) $ 7,225.71 Class PTB-I-2-IO-59 N/A N/A
Class PTB-I-2-59B (7) $ 7,225.71 N/A N/A N/A
Class PTB-I-2-60A (2) $ 6,805.44 Class PTB-I-2-IO-60 N/A N/A
Class PTB-I-2-60B (3) $ 6,805.44 N/A N/A N/A
Class PTB-I-2-61A (2) $ 6,604.55 Class PTB-I-2-IO-61 N/A N/A
Class PTB-I-2-61B (3) $ 6,604.55 N/A N/A N/A
Class PTB-I-2-62A (2) $ 6,220.35 Class PTB-I-2-IO-62 N/A N/A
Class PTB-I-2-62B (3) $ 6,220.35 N/A N/A N/A
Class PTB-I-2-63A (2) $ 6,036.71 Class PTB-I-2-IO-63 N/A N/A
Class PTB-I-2-63B (3) $ 6,036.71 N/A N/A N/A
Class PTB-I-2-64A (2) $ 5,685.50 Class PTB-I-2-IO-64 N/A N/A
Class PTB-I-2-64B (3) $ 5,685.50 N/A N/A N/A
Class PTB-I-2-65A (2) $ 5,517.62 Class PTB-I-2-IO-65 N/A N/A
Class PTB-I-2-65B (3) $ 5,517.62 N/A N/A N/A
Class PTB-I-2-66A (2) $ 5,196.56 Class PTB-I-2-IO-66 N/A N/A
Class PTB-I-2-66B (3) $ 5,196.56 N/A N/A N/A
Class PTB-I-2-67A (2) $ 5,043.10 Class PTB-I-2-IO-67 N/A N/A
Class PTB-I-2-67B (3) $ 5,043.10 N/A N/A N/A
Class PTB-I-2-68A (2) $ 4,749.62 Class PTB-I-2-IO-68 N/A N/A
Class PTB-I-2-68B (3) $ 4,749.62 N/A N/A N/A
Class PTB-I-2-69A (2) $ 4,609.33 Class PTB-I-2-IO-69 N/A N/A
Class PTB-I-2-69B (3) $ 4,609.33 N/A N/A N/A
Class PTB-I-2-70A (2) $ 4,341.05 Class PTB-I-2-IO-70 N/A N/A
Class PTB-I-2-70B (3) $ 4,341.05 N/A N/A N/A
Class PTB-I-2-71A (2) $ 4,212.81 Class PTB-I-2-IO-71 N/A N/A
Class PTB-I-2-71B (3) $ 4,212.81 N/A N/A N/A
Class PTB-I-2-72A (2) $ 3,967.58 Class PTB-I-2-IO-72 N/A N/A
Class PTB-I-2-72B (3) $ 3,967.58 N/A N/A N/A
Class PTB-I-2-73A (2) $ 3,850.35 Class PTB-I-2-IO-73 N/A N/A
Class PTB-I-2-73B (3) $ 3,850.35 N/A N/A N/A
Class PTB-I-2-74A (2) $ 3,736.59 Class PTB-I-2-IO-74 N/A N/A
Class PTB-I-2-74B (3) $ 3,736.59 N/A N/A N/A
Class PTB-I-2-75A (2) $ 4,464.43 Class PTB-I-2-IO-75 N/A N/A
Class PTB-I-2-75B (3) $ 4,464.43 N/A N/A N/A
Class PTB-I-2-76A (2) $ 4,796.11 Class PTB-I-2-IO-76 N/A N/A
Class PTB-I-2-76B (3) $ 4,796.11 N/A N/A N/A
Class PTB-I-2-77A (2) $ 7,757.68 Class PTB-I-2-IO-77 N/A N/A
Class PTB-I-2-77B (3) $ 7,757.68 N/A N/A N/A
Class PTB-I-2-78A (2) $ 7,710.89 Class PTB-I-2-IO-78 N/A N/A
Class PTB-I-2-78B (3) $ 7,710.89 N/A N/A N/A
Class PTB-I-2-79A (2) $ 2,879.78 Class PTB-I-2-IO-79 N/A N/A
Class PTB-I-2-79B (3) $ 2,879.78 N/A N/A N/A
Class PTB-I-2-80A (2) $ 4,021.68 Class PTB-I-2-IO-80 N/A N/A
Class PTB-I-2-80B (3) $ 4,021.68 N/A N/A N/A
Class PTB-I-2-81A (2) $ 9,108.52 Class PTB-I-2-IO-81 N/A N/A
Class PTB-I-2-81B (3) $ 9,108.52 N/A N/A N/A
Class PTB-I-2-82A (2) $ 49,199.59 Class PTB-I-2-IO-82 N/A N/A
Class PTB-I-2-82B (3) $ 49,199.59 N/A N/A N/A
Class PTB-I-2-83A (2) $ 14,050.82 Class PTB-I-2-IO-83 N/A N/A
Class PTB-I-2-83B (3) $ 14,050.82 N/A N/A N/A
Class PTB-I-2-84A (2) $ 18,467.93 Class PTB-I-2-IO-84 N/A N/A
Class PTB-I-2-84B (3) $ 18,467.93 N/A N/A N/A
Class PTB-I-2-85A (2) $ 3,983,478.13 Class PTB-I-2-IO-85 N/A N/A
Class PTB-I-2-85B (3) $ 8,934,467.12 N/A N/A N/A
Class PTB-I-2-86A (2) $ 8,934,467.12 Class PTB-I-2-IO-86 N/A N/A
Class PTB-I-2-86B (3) $ 8,672,359.14 N/A N/A N/A
Class PTB-I-2-87A (2) $ 8,672,359.14 Class PTB-I-2-IO-87 N/A N/A
Class PTB-I-2-87B (3) $ 8,170,978.61 N/A N/A N/A
Class PTB-I-2-88A (2) $ 8,170,978.61 Class PTB-I-2-IO-88 N/A N/A
Class PTB-I-2-88B (3) $ 7,931,261.91 N/A N/A N/A
Class PTB-I-2-89A (2) $ 7,931,261.91 Class PTB-I-2-IO-89 N/A N/A
Class PTB-I-2-89B (3) $ 7,472,713.65 N/A N/A N/A
Class PTB-I-2-90A (2) $ 7,472,713.65 Class PTB-I-2-IO-90 N/A N/A
Class PTB-I-2-90B (3) $ 7,253,475.87 N/A N/A N/A
Class PTB-I-2-91A (2) $ 7,253,475.87 Class PTB-I-2-IO-91 N/A N/A
Class PTB-I-2-91B (3) $ 6,834,101.69 N/A N/A N/A
Class PTB-I-2-92A (2) $ 6,834,101.69 Class PTB-I-2-IO-92 N/A N/A
Class PTB-I-2-92B (3) $ 6,633,593.76 N/A N/A N/A
Class PTB-I-2-93A (2) $ 6,633,593.76 Class PTB-I-2-IO-93 N/A N/A
Class PTB-I-2-93B (3) $ 6,250,047.84 N/A N/A N/A
Class PTB-I-2-94A (2) $ 6,250,047.84 Class PTB-I-2-IO-94 N/A N/A
Class PTB-I-2-94B (3) $ 6,066,670.04 N/A N/A N/A
Class PTB-I-2-95A (2) $ 6,066,670.04 Class PTB-I-2-IO-95 N/A N/A
Class PTB-I-2-95B (3) $ 5,715,892.27 N/A N/A N/A
Class PTB-I-2-96A (2) $ 5,715,892.27 Class PTB-I-2-IO-96 N/A N/A
Class PTB-I-2-96B (3) $ 5,548,181.50 N/A N/A N/A
Class PTB-I-2-97A (2) $ 5,548,181.50 Class PTB-I-2-IO-97 N/A N/A
Class PTB-I-2-97B (3) $ 5,227,373.07 N/A N/A N/A
Class PTB-I-2-98A (2) $ 5,227,373.07 Class PTB-I-2-IO-98 N/A N/A
Class PTB-I-2-98B (3) $ 5,073,991.16 N/A N/A N/A
Class PTB-I-2-99A (2) $ 5,073,991.16 Class PTB-I-2-IO-99 N/A N/A
Class PTB-I-2-99B (3) $ 4,780,592.27 N/A N/A N/A
Class PTB-I-2-100A (2) $ 4,780,592.27 Class PTB-I-2-IO-100 N/A N/A
Class PTB-I-2-100B (3) $ 4,640,315.32 N/A10 N/A N/A
Class PTB-I-2-101A (2) $ 4,640,315.32 Class PTB-I-2-IO-101 N/A N/A
Class PTB-I-2-101B (3) $ 4,412,915.88 N/A N/A N/A
Class PTB-I-2-102A (2) $ 4,412,915.88 Class PTB-I-2-IO-102 N/A N/A
Class PTB-I-2-102B (3) $ 4,242,494.70 N/A N/A N/A
Class PTB-I-2-103A (2) $ 4,242,494.70 Class PTB-I-2-IO-103 N/A N/A
Class PTB-I-2-103B (3) $ 4,017,872.41 N/A N/A N/A
Class PTB-I-2-104A (2) $ 4,017,872.41 Class PTB-I-2-IO-104 N/A N/A
Class PTB-I-2-104B (3) $ 3,879,237.20 N/A N/A N/A
Class PTB-I-2-105A (2) $ 3,879,237.20 Class PTB-I-2-IO-105 N/A N/A
Class PTB-I-2-105B (3) $ 4,126,310.80 N/A N/A N/A
Class PTB-I-2-106A (2) $ 4,126,310.80 Class PTB-I-2-IO-106 N/A N/A
Class PTB-I-2-106B (3) $ 4,015,918.33 N/A N/A N/A
Class PTB-I-2-107A (2) $ 4,015,918.33 Class PTB-I-2-IO-107 N/A N/A
Class PTB-I-2-107B (3) $ 4,831,334.13 N/A N/A N/A
Class PTB-I-2-108A (2) $ 4,831,334.13 Class PTB-I-2-IO-108 N/A N/A
Class PTB-I-2-108B (3) $ 3,668,208.23 N/A N/A N/A
Class PTB-I-2-109A (2) $ 3,668,208.23 Class PTB-I-2-IO-109 N/A N/A
Class PTB-I-2-109B (3) $ 2,965,016.85 N/A N/A N/A
Class PTB-I-2-110A (2) $ 2,965,016.85 Class PTB-I-2-IO-110 N/A N/A
Class PTB-I-2-110B (3) $ 2,878,002.69 N/A10 N/A N/A
Class PTB-I-2-111A (2) $ 2,878,002.69 Class PTB-I-2-IO-111 N/A N/A
Class PTB-I-2-111B (3) $ 2,711,557.34 N/A N/A N/A
Class PTB-I-2-112A (2) $ 2,711,557.34 Class PTB-I-2-IO-112 N/A N/A
Class PTB-I-2-112B (3) $ 2,631,978.64 N/A N/A N/A
Class PTB-I-2-113A (2) $ 2,631,978.64 Class PTB-I-2-IO-113 N/A N/A
Class PTB-I-2-113B (3) $ 2,479,756.46 N/A N/A N/A
Class PTB-I-2-114A (2) $ 2,479,756.46 Class PTB-I-2-IO-114 N/A N/A
Class PTB-I-2-114B (3) $ 2,406,978.05 N/A N/A N/A
Class PTB-I-2-115A (2) $ 2,406,978.05 Class PTB-I-2-IO-115 N/A N/A
Class PTB-I-2-115B (3) $ 2,267,763.99 N/A N/A N/A
Class PTB-I-2-116A (2) $ 2,267,763.99 Class PTB-I-2-IO-116 N/A N/A
Class PTB-I-2-116B (3) $ 2,201,204.94 N/A N/A N/A
Class PTB-I-2-117A (2) $ 2,201,204.94 Class PTB-I-2-IO-117 N/A N/A
Class PTB-I-2-117B (3) $ 2,073,887.73 N/A N/A N/A
Class PTB-I-2-118A (2) $ 2,073,887.73 Class PTB-I-2-IO-118 N/A N/A
Class PTB-I-2-118B (3) $ 2,013,016.71 N/A N/A N/A
Class PTB-I-2-119A (2) $ 2,013,016.71 Class PTB-I-2-IO-119 N/A N/A
Class PTB-I-2-119B (3) $ 1,955,149.74 N/A N/A N/A
Class PTB-I-2-IO-2 (4) (4) N/A Class PTB-I-2-2A April 2007
Class PTB-I-2-IO-3 (4) (4) N/A Class PTB-I-2-3A May 2007
Class PTB-I-2-IO-4 (4) (4) N/A Class PTB-I-2-4A June 2007
Class PTB-I-2-IO-5 (4) (4) N/A Class PTB-I-2-5A July 2007
Class PTB-I-2-IO-6 (4) (4) N/A Class PTB-I-2-6A August 2007
Class PTB-I-2-IO-7 (4) (4) N/A Class PTB-I-2-7A September 2007
Class PTB-I-2-IO-8 (4) (4) N/A Class PTB-I-2-8A October 2007
Class PTB-I-2-IO-9 (4) (4) N/A Class PTB-I-2-9A November 2007
Class PTB-I-2-IO-10 (4) (4) N/A Class PTB-I-2-10A December 2007
Class PTB-I-2-IO-11 (4) (4) N/A Class PTB-I-2-11A January 2008
Class PTB-I-2-IO-12 (4) (4) N/A Class PTB-I-2-12A February 2008
Class PTB-I-2-IO-13 (4) (4) N/A Class PTB-I-2-13A March 2008
Class PTB-I-2-IO-14 (4) (4) N/A Class PTB-I-2-14A April 2008
Class PTB-I-2-IO-15 (4) (4) N/A Class PTB-I-2-15A May 2008
Class PTB-I-2-IO-16 (4) (4) N/A Class PTB-I-2-16A June 2008
Class PTB-I-2-IO-17 (4) (4) N/A Class PTB-I-2-17A July 2008
Class PTB-I-2-IO-18 (4) (4) N/A Class PTB-I-2-18A August 2008
Class PTB-I-2-IO-19 (4) (4) N/A Class PTB-I-2-19A September 2008
Class PTB-I-2-IO-20 (4) (4) N/A Class PTB-I-2-20A October 2008
Class PTB-I-2-IO-21 (4) (4) N/A Class PTB-I-2-21A November 2008
Class PTB-I-2-IO-22 (4) (4) N/A Class PTB-I-2-22A December 2008
Class PTB-I-2-IO-23 (4) (4) N/A Class PTB-I-2-23A January 2009
Class PTB-I-2-IO-24 (4) (4) N/A Class PTB-I-2-24A February 2009
Class PTB-I-2-IO-25 (4) (4) N/A Class PTB-I-2-25A March 2009
Class PTB-I-2-IO-26 (4) (4) N/A Class PTB-I-2-26A April 2009
Class PTB-I-2-IO-27 (4) (4) N/A Class PTB-I-2-27A May 2009
Class PTB-I-2-IO-28 (4) (4) N/A Class PTB-I-2-28A June 2009
Class PTB-I-2-IO-29 (4) (4) N/A Class PTB-I-2-29A July 2009
Class PTB-I-2-IO-30 (4) (4) N/A Class PTB-I-2-30A August 2009
Class PTB-I-2-IO-31 (4) (4) N/A Class PTB-I-2-31A September 2009
Class PTB-I-2-IO-32 (4) (4) N/A Class PTB-I-2-32A October 2009
Class PTB-I-2-IO-33 (4) (4) N/A Class PTB-I-2-33A November 2009
Class PTB-I-2-IO-34 (4) (4) N/A Class PTB-I-2-34A December 2009
Class PTB-I-2-IO-35 (4) (4) N/A Class PTB-I-2-35A January 2010
Class PTB-I-2-IO-36 (4) (4) N/A Class PTB-I-2-36A February 2010
Class PTB-I-2-IO-37 (4) (4) N/A Class PTB-I-2-37A March 2010
Class PTB-I-2-IO-38 (4) (4) N/A Class PTB-I-2-38A April 2010
Class PTB-I-2-IO-39 (4) (4) N/A Class PTB-I-2-39A May 2010
Class PTB-I-2-IO-40 (4) (4) N/A Class PTB-I-2-40A June 2010
Class PTB-I-2-IO-41 (4) (4) N/A Class PTB-I-2-41A July 2010
Class PTB-I-2-IO-42 (4) (4) N/A Class PTB-I-2-42A August 2010
Class PTB-I-2-IO-43 (4) (4) N/A Class PTB-I-2-43A September 2010
Class PTB-I-2-IO-44 (4) (4) N/A Class PTB-I-2-44A October 2010
Class PTB-I-2-IO-45 (4) (4) N/A Class PTB-I-2-45A November 2010
Class PTB-I-2-IO-46 (4) (4) N/A Class PTB-I-2-46A December 2010
Class PTB-I-2-IO-47 (4) (4) N/A Class PTB-I-2-47A January 2011
Class PTB-I-2-IO-48 (4) (4) N/A Class PTB-I-2-48A February 2011
Class PTB-I-2-IO-49 (4) (4) N/A Class PTB-I-2-49A March 2011
Class PTB-I-2-IO-50 (4) (4) N/A Class PTB-I-2-50A April 2011
Class PTB-I-2-IO-51 (4) (4) N/A Class PTB-I-2-51A May 2011
Class PTB-I-2-IO-52 (4) (4) N/A Class PTB-I-2-52A June 2011
Class PTB-I-2-IO-53 (4) (4) N/A Class PTB-I-2-53A July 2011
Class PTB-I-2-IO-54 (4) (4) N/A Class PTB-I-2-54A August 2011
Class PTB-I-2-IO-55 (4) (4) N/A Class PTB-I-2-55A September 2011
Class PTB-I-2-IO-56 (4) (4) N/A Class PTB-I-2-56A October 20011
Class PTB-I-2-IO-57 (4) (4) N/A Class PTB-I-2-57A November 2011
Class PTB-I-2-IO-58 (4) (4) N/A Class PTB-I-2-58A December 2011
Class PTB-I-2-IO-59 (4) (4) N/A Class PTB-I-2-59A January 2012
Class PTB-I-2-IO-60 (4) (4) N/A Class PTB-I-2-60A February 2012
Class PTB-I-2-IO-61 (4) (4) N/A Class PTB-I-2-61A March 2012
Class PTB-I-2-IO-62 (4) (4) N/A Class PTB-I-2-62A April 2012
Class PTB-I-2-IO-63 (4) (4) N/A Class PTB-I-2-63A May 2012
Class PTB-I-2-IO-64 (4) (4) N/A Class PTB-I-2-64A June 2012
Class PTB-I-2-IO-65 (4) (4) N/A Class PTB-I-2-65A July 2012
Class PTB-I-2-IO-66 (4) (4) N/A Class PTB-I-2-66A August 2012
Class PTB-I-2-IO-67 (4) (4) N/A Class PTB-I-2-67A September 2012
Class PTB-I-2-IO-68 (4) (4) N/A Class PTB-I-2-68A October 2012
Class PTB-I-2-IO-69 (4) (4) N/A Class PTB-I-2-69A November 2012
Class PTB-I-2-IO-70 (4) (4) N/A Class PTB-I-2-70A December 2012
Class PTB-I-2-IO-71 (4) (4) N/A Class PTB-I-2-71A January 2013
Class PTB-I-2-IO-72 (4) (4) N/A Class PTB-I-2-72A February 2013
Class PTB-I-2-IO-73 (4) (4) N/A Class PTB-I-2-73A March 2013
Class PTB-I-2-IO-74 (4) (4) N/A Class PTB-I-2-74A April 2013
Class PTB-I-2-IO-75 (4) (4) N/A Class PTB-I-2-75A May 2013
Class PTB-I-2-IO-76 (4) (4) N/A Class PTB-I-2-76A June 2013
Class PTB-I-2-IO-77 (4) (4) N/A Class PTB-I-2-77A July 2013
Class PTB-I-2-IO-78 (4) (4) N/A Class PTB-I-2-78A August 2013
Class PTB-I-2-IO-79 (4) (4) N/A Class PTB-I-2-79A September 2013
Class PTB-I-2-IO-80 (4) (4) N/A Class PTB-I-2-80A October 2013
Class PTB-I-2-IO-81 (4) (4) N/A Class PTB-I-2-81A November 2013
Class PTB-I-2-IO-82 (4) (4) N/A Class PTB-I-2-82A December 2013
Class PTB-I-2-IO-83 (4) (4) N/A Class PTB-I-2-83A January 2014
Class PTB-I-2-IO-84 (4) (4) N/A Class PTB-I-2-84A February 2014
Class PTB-I-2-IO-85 (4) (4) N/A Class PTB-I-2-85A March 2014
Class PTB-I-2-IO-86 (4) (4) N/A Class PTB-I-2-86A April 2014
Class PTB-I-2-IO-87 (4) (4) N/A Class PTB-I-2-87A May 2014
Class PTB-I-2-IO-88 (4) (4) N/A Class PTB-I-2-88A June 2014
Class PTB-I-2-IO-89 (4) (4) N/A Class PTB-I-2-89A July 2014
Class PTB-I-2-IO-90 (4) (4) N/A Class PTB-I-2-90A August 2014
Class PTB-I-2-IO-91 (4) (4) N/A Class PTB-I-2-91A September 2014
Class PTB-I-2-IO-92 (4) (4) N/A Class PTB-I-2-92A October 2014
Class PTB-I-2-IO-93 (4) (4) N/A Class PTB-I-2-93A November 2014
Class PTB-I-2-IO-94 (4) (4) N/A Class PTB-I-2-94A December 2014
Class PTB-I-2-IO-95 (4) (4) N/A Class PTB-I-2-95A January 2015
Class PTB-I-2-IO-96 (4) (4) N/A Class PTB-I-2-96A February 2015
Class PTB-I-2-IO-97 (4) (4) N/A Class PTB-I-2-97A March 2015
Class PTB-I-2-IO-98 (4) (4) N/A Class PTB-I-2-98A April 2015
Class PTB-I-2-IO-99 (4) (4) N/A Class PTB-I-2-99A May 2015
Class PTB-I-2-IO-100 (4) (4) N/A Class PTB-I-2-100A June 2015
Class PTB-I-2-IO-101 (4) (4) N/A Class PTB-I-2-101A July 2015
Class PTB-I-2-IO-102 (4) (4) N/A Class PTB-I-2-102A August 2015
Class PTB-I-2-IO-103 (4) (4) N/A Class PTB-I-2-103A September 2015
Class PTB-I-2-IO-104 (4) (4) N/A Class PTB-I-2-104A October 2015
Class PTB-I-2-IO-105 (4) (4) N/A Class PTB-I-2-105A November 2015
Class PTB-I-2-IO-106 (4) (4) N/A Class PTB-I-2-106A December 2015
Class PTB-I-2-IO-107 (4) (4) N/A Class PTB-I-2-107A January 2016
Class PTB-I-2-IO-108 (4) (4) N/A Class PTB-I-2-108A February 2016
Class PTB-I-2-IO-109 (4) (4) N/A Class PTB-I-2-109A March 2016
Class PTB-I-2-IO-110 (4) (4) N/A Class PTB-I-2-110A April 2016
Class PTB-I-2-IO-111 (4) (4) N/A Class PTB-I-2-111A May 2016
Class PTB-I-2-IO-112 (4) (4) N/A Class PTB-I-2-112A June 2016
Class PTB-I-2-IO-113 (4) (4) N/A Class PTB-I-2-113A July 2016
Class PTB-I-2-IO-114 (4) (4) N/A Class PTB-I-2-114A August 2016
Class PTB-I-2-IO-115 (4) (4) N/A Class PTB-I-2-115A September 2016
Class PTB-I-2-IO-116 (4) (4) N/A Class PTB-I-2-116A October 2016
Class PTB-I-2-IO-117 (4) (4) N/A Class PTB-I-2-17A November 2016
Class PTB-I-2-IO-118 (4) (4) N/A Class PTB-I-2-118A December 2016
Class PTB-I-2-IO-119 (4) (4) N/A Class PTB-I-2-119A January 2017
Class PTI-B-R (8) (8) N/A N/A N/A
--------------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
Group I Pooling Tier REMIC-A Subgroup I-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
weighted average of the Group I Pooling Tier REMIC-A Interest Rates on the
Group I Pooling Tier REMIC-A Regular Interests relating to the Subgroup
I-1 Mortgage Loans and having an "A" at the end of their class
designation, provided that, on each Distribution Date on which interest is
distributable on the Group I Corresponding Pooling Tier REMIC-B IO
Interest, this Group I Pooling Tier REMIC-B Regular Interest shall bear
interest at a per annum rate equal to Swap LIBOR subject to a maximum rate
equal to the weighted average of the Group I Pooling Tier REMIC-A Interest
Rates on the Group I Pooling Tier REMIC-A Regular Interests relating to
the Subgroup I-1 Mortgage Loans and having an "A" at the end of their
class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
weighted average of the Group I Pooling Tier REMIC-A Interest Rates on the
Group I Pooling Tier REMIC-A Regular Interests relating to the Subgroup
I-1 Mortgage Loans and having a "B" at the end of their class designation.
(4) Each Group I Pooling Tier REMIC-B IO Interest is an interest-only interest
and does not have a principal balance but has a notional balance ("Group I
Pooling Tier REMIC-2 IO Notional Balance") equal to the Group I Pooling
Tier REMIC-A Principal Amount of the Group I Corresponding Pooling Tier
REMIC-A Regular Interest. From the Closing Date through and including the
Group I Corresponding Actual Crossover Distribution Date, each Group I
Pooling Tier REMIC-B IO Interest shall be entitled to receive interest
that accrues on the Group I Corresponding Pooling Tier REMIC-A Regular
Interest at a rate equal to the excess, if any, of (i) the Group I Pooling
Tier REMIC-A Interest Rate for the Group I Corresponding Pooling Tier
REMIC-1 Regular Interest over (ii) Swap LIBOR. After the related Group I
Corresponding Actual Crossover Distribution Date, the Group I Pooling Tier
REMIC-B IO Interest shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
Group I Pooling Tier REMIC-A Subgroup I-2 WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
weighted average of the Group I Pooling Tier REMIC-A Interest Rates on the
Group I Pooling Tier REMIC-A Regular Interests relating to the Subgroup
I-2 Mortgage Loans and having an "A" at the end of their class
designation, provided that, on each Distribution Date on which interest is
distributable on the Group I Corresponding Pooling Tier REMIC-B IO
Interest, this Group I Pooling Tier REMIC-B Regular Interest shall bear
interest at a per annum rate equal to Swap LIBOR subject to a maximum rate
equal to the weighted average of the Group I Pooling Tier REMIC-A Interest
Rates on the Group I Pooling Tier REMIC-A Regular Interests relating to
the Subgroup I-2 Mortgage Loans and having an "A" at the end of their
class designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Group I Pooling Tier REMIC-B Regular Interest shall bear interest at a per
annum rate (its "Group I Pooling Tier REMIC-B Interest Rate") equal to the
weighted average of the Group I Pooling Tier REMIC-A Interest Rates on the
Group I Pooling Tier REMIC-A Regular Interests relating to the Subgroup
I-2 Mortgage Loans and having a "B" at the end of their class designation.
(8) The Class PTI-B-R Interest shall not have a principal balance and shall
not bear interest.
On each Distribution Date, the interest distributable in respect of
the Group I Mortgage Loans from the related subgroup for such Distribution Date
shall be distributed to the Group I Pooling Tier REMIC-B Regular Interests at
the Group I Pooling Tier REMIC-B Interest Rates shown above.
On each Distribution Date, Realized Losses for Subgroup I-1,
Subsequent Recoveries for Subgroup I and payments of principal in respect of the
Subgroup I-1 Mortgage Loans shall be allocated to the then outstanding Group I
Pooling Tier REMIC-B Regular Interests (other than the Group I Pooling Tier
REMIC-B IO Interests) relating to the Subgroup I-1 Mortgage Loans with the
lowest numerical denomination until the Group I Pooling Tier REMIC-B Principal
Amount of such interest or interests, as the case may be, is reduced to zero,
provided that, for Group I Pooling Tier REMIC-B Regular Interests Mortgage Loans
with the same numerical denomination, such Realized Losses for Subgroup I-1,
Subsequent Recoveries for Subgroup I-1 and payments of principal shall be
allocated pro rata between such Group I Pooling Tier REMIC-B Regular Interests.
On each Distribution Date, Realized Losses for Subgroup I-2,
Subsequent Recoveries for Subgroup I-2 and payments of principal in respect of
the Subgroup I-2 Mortgage Loans shall be allocated to the then outstanding Group
I Pooling Tier REMIC-B Regular Interests (other than the Group I Pooling Tier
REMIC-B IO Interests) relating to the Subgroup I-2 Mortgage Loans with the
lowest numerical denomination until the Group I Pooling Tier REMIC-B Principal
Amount of such interest or interests, as the case may be, is reduced to zero,
provided that, for Group I Pooling Tier REMIC-B Regular Interests with the same
numerical denomination, such Realized Losses for Subgroup I-2, Subsequent
Recoveries for Subgroup I-2 and payments of principal shall be allocated pro
rata between such Group I Pooling Tier REMIC-B Regular Interests.
Group I Lower Tier REMIC
The Group I Lower Tier REMIC shall issue the following interests,
and each such interest, other than the Class I-LT-R Interest, is hereby
designated as a regular interest in the Group I Lower Tier REMIC. The Class
I-LT-R Interest is hereby designated as the sole Class of residual interest in
the Group I Lower Tier REMIC and shall be represented by the Class I-R
Certificates.
Group I
Group I Lower Tier Group I Lower Corresponding
REMIC Tier REMIC Initial Group I Lower Tier Upper Tier REMIC
Class Designation Interest Rate REMIC Principal Amount Regular Interest
------------------ ------------- ------------------------------------ ------------------------
Class LT-I-1-A (1) 1/4 Group I Corresponding Upper I-1-A
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-2-A-1 (1) 1/4 Group I Corresponding Upper I-2-A-1
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-2-A-2 (1) 1/4 Group I Corresponding Upper I-2-A-2
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-1 (1) 1/4 Group I Corresponding Upper I-M-1
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-2 (1) 1/4 Group I Corresponding Upper I-M-2
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-3 (1) 1/4 Group I Corresponding Upper I-M-3
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-4 (1) 1/4 Group I Corresponding Upper I-M-4
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-5 (1) 1/4 Group I Corresponding Upper I-M-5
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-6 (1) 1/4 Group I Corresponding Upper I-M-6
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-7 (1) 1/4 Group I Corresponding Upper I-M-7
Tier REMIC Regular Interest
initial Class Certificate Balance
Class LT-I-M-8 (1) 1/4 Group I Corresponding Upper I-M-8
Tier REMIC Regular Interest
initial Class Certificate Balance
Class I-LT-Accrual (1) 1/4 Group I Pool Stated Principal N/A
Balance plus 1/4 Subordinated Amount
Class LT- (1) 0.01% initial Subgroup I-1 N/A
Subgroup I-1(SUB) Subordinated Amount (6)
Class LT- (2) 0.01% initial aggregate Stated N/A
Subgroup I-1 Principal Balance of the
Subgroup I-1 Mortgage Loans (6)
Class LT- (1) 0.01% initial Subgroup I-2 N/A
Subgroup I-2(SUB) Subordinated Amount (6)
Class LT- (3) 0.01% initial aggregate Stated N/A
Subgroup I-2 Principal Balance of the
Subgroup I-2 Mortgage Loans (6)
Class LT-I-XX (1) 1/2 initial aggregate Stated
Principal Balance of the Group 1
Mortgage Loans, less aggregate
Initial Group I Lower Tier REMIC
Principal Amounts of Class
LT-Subgroup I-1 (SUB), Class
LT-Subgroup I-1 Interests, Class
LT-Subgroup I-2 (SUB) and Class
LT-Subgroup I-2 Interests
Class I-LT-IO (4) (4) N/A
Class I-LT-R (5) (5) N/A
----------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Group I Lower Tier
REMIC Net WAC Rate.
(2) The interest rate with respect to any Distribution Date for the Class
LT-Subgroup I-1 Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Group I Pooling Tier REMIC-B Interest Rates of the Group I Pooling
Tier REMIC-B Regular Interests (other than the Group I Pooling Tier
REMIC-B IO Interests) relating to the Subgroup I-1 Mortgage Loans.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Subgroup I-2 Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Group I Pooling Tier REMIC-B Interest Rates of the Group I Pooling
Tier REMIC-B Regular Interests (other than the Group I Pooling Tier
REMIC-B IO Interests) relating to the Subgroup I-2 Mortgage Loans.
(4) This Group I Lower Tier Regular Interest is an interest-only interest and
does not have a Group I Lower Tier REMIC Principal Amount. On each
Distribution Date, this Group I Lower Tier Regular Interest shall be
entitled to receive all interest distributable on the Group I Pooling Tier
REMIC-B IO Interests.
(5) The Class I-LT-R Interest is the sole Class of residual interest in the
Group I Lower Tier REMIC and it does not have a principal amount or an
interest rate.
(6) For all Distribution Dates, the Group I Lower Tier Principal Amount of
these Group I Lower Tier REMIC Regular Interests shall be rounded to eight
decimal places.
Each Group I Lower Tier Regular Interest is hereby designated as a
regular interest in the Group I Lower Tier REMIC. The Class LT-I-1-A, Class
LT-I-2-A-1, Class LT-I-2-A-2, Class LT-I-M-1, Class LT-I-M-2, Class LT-I-M-3,
Class LT-I-M-4, Class LT-I-M-5, Class LT-I-M-6, Class LT-I-M-7 and Class
LT-I-M-8 Interests are hereby designated the Group I-LT Accretion Directed
Classes (the "Group I-LT Accretion Directed Classes").
On each Distribution Date, 25% of the increase in the Subordinated
Amount shall be payable as a reduction of the Group I Lower Tier REMIC Principal
Amount of the Group I-LT Accretion Directed Classes (each such Class will be
reduced by an amount equal to 25% of any increase in the Subordinated Amount
that is attributable to a reduction in the Class Certificate Balance of its
Group I Corresponding Class) and shall be accrued and added to the Group I Lower
Tier REMIC Principal Amount of the Class I-LT-Accrual Interest. On each
Distribution Date, the increase in the Group I Lower Tier REMIC Principal Amount
of the Class I-LT-Accrual Interest may not exceed interest accruals for such
Distribution Date for the Class I-LT-Accrual Interest. In the event that: (i)
25% of the increase in the Subordinated Amount exceeds (ii) interest accruals on
the Class I-LT-Accrual Interest for such Distribution Date, the excess for such
Distribution Date (accumulated with all such excesses for all prior Distribution
Dates) will be added to any increase in the Subordinated Amount for purposes of
determining the amount of interest accrual on the Class I-LT-Accrual Interest
payable as principal on the Group I-LT Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Group I
Mortgage Loans and all Subsequent Recoveries for Loan Group I allocable to
principal shall be allocated (i) 25% to the Class I-LT-Accrual Interest, (ii)
25% to the Group I-LT Accretion Directed Classes (such principal payments and
Subsequent Recoveries for Loan Group I shall be allocated among such Group I-LT
Accretion Directed Classes in an amount equal to 25% of the principal amounts
and Subsequent Recoveries for Loan Group I allocated to their respective Group I
Corresponding Classes), until paid in full, and (iii) 50% to Class LT-Subgroup
I-1(SUB) Interest, Class LT-Subgroup I-1 Interest, Class LT-Subgroup I-2(SUB)
Interest, Class LT-Subgroup I-2 Interest and Class LT-I-XX Interest (and further
allocated among these Group I Lower Tier Regular Interests in the manner
described in the next sentence). As among the Class LT-Subgroup I-1(SUB)
Interest, Class LT-Subgroup I-1 Interest, Class LT-Subgroup I-2(SUB) Interest,
Class LT-Subgroup I-2 Interest and Class LT-I-XX Interest, all payments of
scheduled principal and prepayments of principal generated by the Group I
Mortgage Loans and Subsequent Recoveries referred to in clause (iii) of the
previous sentence shall be allocated (i) first, to the Class LT-Subgroup
I-1(SUB) Interest, and Class LT-Subgroup I-2(SUB) Interest, each from the
related Subgroup, so that their respective Group I Lower Tier REMIC Principal
Amount (computed to at least eight decimal places) is equal to 0.01% of the
related Subgroup I-1 Subordinated Amount and Subgroup I-2 Subordinated Amount,
respectively (except that if any such amount is a larger number than in the
preceding distribution period, the least amount of principal shall be
distributed to the Class LT-Subgroup I-1(SUB) Interest and Class LT-Subgroup
I-2(SUB) Interest, as applicable, such that the Group I Lower Tier REMIC
Subordinated Balance Ratio is maintained); (ii) second, to the Class LT-Subgroup
I-1 Interest and the Class LT-Subgroup I-2 Interest, 0.01% of the principal
collected in respect of the related Subgroup; and (iii) third, any remaining
amounts of principal shall be distributed to the Class LT-I-XX Interest.
Notwithstanding the above, principal payments allocated to the Class I-CE
Interest that result in the reduction in the Subordinated Amount shall be
allocated (i) 50% to the Class I-LT-Accrual Interest (until paid in full), and
(ii) 50% to the Class LT-Subgroup I-1(SUB) Interest, the Class LT-Subgroup
I-2(SUB) Interest, the Class LT-Subgroup I-1 Interest, the Class LT-Subgroup I-2
Interest and the Class LT-I-XX Interest (and allocated among these Group I Lower
Tier Regular Interests in a manner similar to that described in the immediately
preceding sentence).
Reductions to Group I Lower Tier REMIC Principal Amounts as a result
of Realized Losses in Loan Group I and increases in Group I Lower Tier REMIC
Principal Amounts as a result of Subsequent Recoveries for Loan Group I shall be
applied so that after all distributions have been made on each Distribution Date
(i) the Group I Lower Tier REMIC Principal Amount of each Group I-LT Accretion
Directed Class is equal to 25% of the Class Certificate Balance of its Group I
Corresponding Class, (ii) the Class I-LT-Accrual Interest is equal to 25% of the
aggregate Stated Principal Balance of the Group I Mortgage Loans plus 25% of the
Subordinated Amount, (iii) the Class LT-Subgroup I-1(SUB) Interest is equal to
0.01% of the Subgroup I-1 Subordinated Amount, (iv) the Class LT-Subgroup
I-2(SUB) Interest is equal to 0.01% of the Subgroup I-2 Subordinated Amount, (v)
the Class LT-Subgroup I-1 Interest is equal to 0.01% of the aggregate Stated
Principal Balance of the Subgroup I-1 Mortgage Loans, (vi) the Class LT-Subgroup
I-2 Interest is equal to 0.01% of the aggregate Stated Principal Balance of the
Subgroup I-2 Mortgage Loans and (vii) the remainder shall be applied to the
Class LT-I-XX Interest.
Group I Upper Tier REMIC
The Group I Upper Tier REMIC shall issue the following Classes of
Group I Upper Tier REMIC Regular Interests and each such interest, other than
the Class I-UT-R Interest, is hereby designated as a regular interest in the
Group I Upper Tier REMIC. The Class I-UT-R Interest is hereby designated as the
sole Class of residual interests in the Group I Upper Tier REMIC and shall be
represented by the Class I-R Certificates.
Group I
Group I Upper Tier Group I Upper Group I Initial Corresponding
REMIC Tier REMIC Upper Tier REMIC Class of
Class Designation Interest Rate Principal Amount Certificates
-------------------- --------------- ------------------ ---------------
Class I-1-A (1) $436,337,000.00 Class I-1-A
Class I-2-A-1 (2) $519,568,000.00 Class I-2-A-1
Class I-2-A-2 (2) $57,730,000.00 Class I-2-A-2
Class I-M-1 (3) $14,527,000.00 Class I-M-1
Class I-M-2 (3) $9,146,000.00 Class I-M-2
Class I-M-3 (3) $5,380,000.00 Class I-M-3
Class I-M-4 (3) $5,380,000.00 Class I-M-4
Class I-M-5 (3) $5,380,000.00 Class I-M-5
Class I-M-6 (3) $5,380,000.00 Class I-M-6
Class I-M-7 (3) $4,842,000.00 Class I-M-7
Class I-M-8 (3) $5,380,000.00 Class I-M-8
Class I-IO (4) (4)
Class I-CE (5) (5) Class I-CE (3)
Class I-UT-R (6) (6) Class I-R
--------------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Subgroup I-1 Loan Cap) for the Group I
Corresponding Class of Certificates and (ii) the Group I Lower Tier
Interest Rate for the Class LT Subgroup I-1 Interest (the "Group I Upper
Tier REMIC Subgroup I-1 Rate").
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Subgroup I-2 Loan Cap) for the Group I
Corresponding Class of Certificates and (ii) the Group I Lower Tier
Interest Rate for the Class LT-Subgroup I-2 Interest (the "Group I Upper
Tier REMIC Subgroup I-2 Rate").
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group I Pool Cap) for the Corresponding
Class of Certificates and (ii) the Group I Upper Tier REMIC Pool Cap Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class I-IO Interest shall be
entitled to receive all interest distributable on the Class I-LT-IO
Interest. This interest shall be beneficially owned by the holders of the
Class I-CE Certificates and shall be held as an asset of the Supplemental
Interest Account.
(5) The Class I-CE Interest has an initial principal balance of $6,995,479 but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class I-CE
Interest shall have a notional principal balance equal to the aggregate of
the Group I Lower Tier Principal Amounts of the Group I Lower Tier Regular
Interests (other than the Class I-LT-IO Interest) as of the first day of
the related Interest Accrual Period. With respect to any Interest Accrual
Period, the Class I-CE Interest shall bear interest at a rate equal to the
excess, if any, of the Group I Lower Tier REMIC Net WAC Rate over the
product of (i) 2 and (ii) the weighted average Group I Lower Tier REMIC
Interest Rate of the Group I Lower Tier Regular Interests (other than
Class LT-I-Subgroup I-1, Class LT-I-Subgroup I-2, Class LT-I-Subgroup
I-1(SUB), Class LT-I-Subgroup I-2(SUB), Class LT-I-XX and Class I-LT-IO
Interests, where the Group I Lower Tier REMIC Interest Rate on the Class
I-LT-Accrual Interest is subject to a cap equal to zero and each Group
I-LT Accretion Directed Class is subject to a cap equal to the Group I
Upper Tier Interest Rate on its Group I Corresponding Class of Group I
Upper Tier Regular Interest. With respect to any Distribution Date,
interest that so accrues on the notional principal balance of the Class
I-CE Interest shall be deferred in an amount equal to any increase in the
Subordinated Amount on such Distribution Date. Such deferred interest
shall not itself bear interest.
(6) The Class I-UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Group I Lower Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Group I Upper Tier REMIC at the rates shown
above, provided that the Class I-IO Interest shall be entitled to receive
interest before any other interest in the Group I Upper Tier REMIC.
On each Distribution Date, all Realized Losses for Loan Group I,
Subsequent Recoveries for Loan Group I and all payments of principal shall be
allocated to the Group I Upper Tier Interests until the outstanding principal
balance of each such interest equals the outstanding Class Certificate Balance
of the Group I Corresponding Class of Certificates as of such Distribution Date.
GROUP II Pooling Tier REMIC
The Class PT-II-1B, Class PT-II-1Q, Class PT-II-2B, Class PT-II-2Q,
Class PT-II-1-IO, Class PT-II-2-IO, Class PT-II-1-PO and Class PT-II-2-PO
Interests will evidence "regular interests" in the Group II Pooling Tier REMIC
created hereunder. The Class PT-II-AR Interest shall constitute the sole Class
of "residual interests" in the Group II Pooling Tier REMIC and will be evidenced
by the Class II-AR Certificates.
The following table sets forth the Original Group II Pooling Tier
Principal Amounts and per annum rates of interest for the Group II Pooling Tier
Interests and the Class PT-II-AR Interest:
` Group II Pooling `
` Tier REMIC `
` Interest Original Group II Pooling Tier
Class Designation Rate Principal Amount
----------------- ---------------- ------------------------------
Class PT-II-1B (1) 0.001% of Group II Subgroup
Subordinate Amount of Subgroup
II-1 (6)
Class PT-II-1-PO Class Certificate Balance of
(2) Class II-1-PO Certificates (7)
Class PT-II-1Q (1) Stated Principal Balance of
Subgroup II-1 Mortgage Loans less
aggregate Group II Pooling Tier
Principal Amounts of Class
PT-II-1B and Class PT-II-1-PO
Interests (8)
Class PT-II-1-IO (3) (3)
Class PT-II-2B (4) 0.001% of Group II Subgroup
Subordinate Amount of Subgroup
II-2 (6)
Class PT-II-2-PO (2) Class Certificate Balance of
Class II-2-PO Certificates (7)
Class PT-II-2Q (4) Stated Principal Balance of
Subgroup II-2 Mortgage Loans less
aggregate Group II Pooling Tier
Principal Amounts of Class
PT-II-2B and Class PT-II-2-PO
Interests (8)
Class PT-II-2-IO (5) (5)
Class PT-II-AR 6.00% $100
------
(1) The interest rate for this Group II Pooling Tier Interest shall be a per
annum rate equal to 6.25%.
(2) This Group II Pooling Tier Interest shall not bear interest.
(3) This Group II Pooling Tier Interest shall not have a principal balance and
shall represent a "specified portion," within the meaning of the REMIC
Provisions, of the interest payments on the Subgroup I-1 Non-Discount
Mortgage Loans equal to the product of (i) the excess of (A) the weighted
average of the net Mortgage Interest Rates of the Subgroup II-1
Non-Discount Mortgage Loans over (B) 6.25% and (ii) the Stated Principal
Balances of the Subgroup II-1 Non-Discount Mortgage Loans as of the Due
Date in the month of the related Distribution Date (prior to giving effect
to any Scheduled Payments due on such Mortgage Loan on such Due Date).
(4) The interest rate for this Group II Pooling Tier Interest shall be a per
annum rate equal to 6.00%.
(5) This Group II Pooling Tier Interest shall not have a principal balance and
shall represent a "specified portion," within the meaning of the REMIC
Provisions, of the interest payments on the Subgroup I-2 Non-Discount
Mortgage Loans equal to the product of (i) the excess of (A) the weighted
average of the net Mortgage Interest Rates of the Subgroup II-2
Non-Discount Mortgage Loans over (B) 6.00% and (ii) the Stated Principal
Balances of the Subgroup II-2 Non-Discount Mortgage Loans as of the Due
Date in the month of the related Distribution Date (prior to giving effect
to any Scheduled Payments due on such Mortgage Loan on such Due Date).
(6) As of the Closing Date and any date of determination, (i) the Group II
Pooling Tier Principal Amount of the Class PT-II-1B Interest shall equal
0.001% of the Subgroup Subordinate Amount of Subgroup II-1 and (ii) the
Group II Pooling Tier Principal Amount of the Class PT-II-2B Interest
shall equal 0.001% of the Subgroup Subordinate Amount of Subgroup II-2 (in
each case, computed to at least eight decimal places).
(7) As of the Closing Date and any date of determination, the Group II Pooling
Tier Principal Amount of the Class PT-II-1-PO Interest and Class
PT-II-2-PO Interest shall equal the Class Certificate Balance of the Class
II-1-PO Certificates and the Class II-2-PO Certificates, respectively.
(8) As of the Closing Date and any date of determination, (i) the Group II
Pooling Tier Principal Amount of the Class PT-II-1Q Interest shall equal
the excess of the aggregate Stated Principal Balance of the Mortgage Loans
in Subgroup II-1 over the aggregate Group II Pooling Tier Principal Amount
of the Class PT-II-1B and Class PT-II-1-PO Interests and (ii) the Group II
Pooling Tier Principal Amount of the Class PT-II-2Q Interest shall equal
the excess of the aggregate Stated Principal Balance of the Mortgage Loans
in Subgroup II-2 over the aggregate Group II Pooling Tier Principal Amount
of the Class PT-II-2B and Class PT-II-2-PO Interests.
With respect to the Group II Mortgage Loans and the Group II Pooling
Tier Interests, distributions of principal shall be made, and Realized Losses,
Fraud Losses, Bankruptcy Losses, Special Hazard Losses, Deficient Valuations and
Excess Losses shall be allocated:
first, from Subgroup I-1, to the Class PT-II-1-PO Interest, so
as to keep the Group II Pooling Tier Principal Amount of the Class
PT-II-1-PO Interest equal to Class Certificate Balance of the Class
II-1-PO Certificates, and from Subgroup I-2, to the Class PT-II-2-PO
Interest, so as to keep the Group II Pooling Tier Principal Amount
of the Class PT-II-2-PO Interest equal to Class Certificate Balance
of the Class II-2-PO Certificates;
second, to the Class PT-II-1B Interest and Class PT-II-2B
Interest, from the related Subgroup, so that their respective Group
II Pooling Tier Principal Amounts (computed to at least eight
decimal places) are equal to (A) 0.001% of the Subgroup Subordinate
Amount of Subgroup II-1, and (B) 0.001% of the Subgroup Subordinate
Amount of Subgroup II-2, respectively (except that if any such
amount is a larger number than in the preceding distribution period,
the least amount of principal shall be distributed or losses shall
be allocated to the Class PT-II-1B Interest and Class PT-II-2B
Interest, as applicable, such that the Group II Pooling Tier
Subordinated Balance Ratio is maintained); and
third, any remaining amounts of principal shall be distributed
and losses shall be allocated from the related Subgroup, to the
Class PT-II-1Q Interest and Class PT-II-2Q Interest, respectively.
Any amounts remaining after distributing to the Group II Pooling
Tier Interests as described above shall be distributed to the Holders of the
Class II-AR Certificates in respect of the Class PT-II-AR Interest.
Group II Lower Tier REMIC
The Class LT-II-1-A-1, Class LT-II-1-A-2, Class LT-II-1-A-3, Class
LT-II-1-A-4, Class LT-II-1-A-5, Class LT-II-1-A-6, Class LT-II-1-A-7, Class
LT-II-1-A-8, Class LT-II-1-A-10, Class LT-II-1-A-11, Class LT-II-1-A-12, Class
LT-II-1-A-13, Class LT-II-1-A-15, Class LT-II-2-A-1, Class LT-II-1-IO, Class
LT-II-1-PO, Class LT-II-2-IO, Class LT-II-2-PO, Class LT-II-M-1, Class
LT-II-B-1, Class LT-II-B-2, Class LT-II-B-3, Class LT-II-B-4 and Class LT-II-B-5
Interests will evidence "regular interests" in the Group II Lower Tier REMIC
created hereunder. The Class LT-II-AR Interest shall constitute the sole Class
of "residual interests" in the Group II Lower Tier REMIC and will be evidenced
by the Class II-AR Certificates.
The following table sets forth the Group II Lower Tier Principal
Amounts and per annum rates of interest for the Group II Lower Tier REMIC
Interests:
Corresponding Group II Lower Group II Lower
Class of Group II Tier REMIC Tier
Class Designation Certificates Interest Rate Principal Amount
----------------- ------------ ------------- ----------------
Class LT-II-1-A-1 Class II-1-A-1 6.25% (1)
Class LT-II-1-A-2 Class II-1-A-2 6.25% (1)
Class LT-II-1-A-3 Class II-1-A-3 6.25% (1)
Class LT-II-1-A-4 Class II-1-A-4 6.25% (1)
Class LT-II-1-A-5 Class II-1-A-5 6.25% (1)
Class LT-II-1-A-6 Class II-1-A-6 6.25% (1)
Class LT-II-1-A-7 Class II-1-A-7 6.25% (1)
Class LT-II-1-A-8 Class II-1-A-8 6.25% (1)
Class LT-II-1-A-10 Class II-1-A-10 6.25% (1)
Class LT-II-1-A-11 Class II-1-A-11 6.25% (1)
Class LT-II-1-A-12 Class II-1-A-12 6.25% (1)
Class LT-II-1-A-13 Class II-1-A-13 6.25% (1)
Class LT-II-1-A-15 Class II-1-A-15 6.25% (1)
Class LT-II-2-A-1 Class II-2-A-1 6.00% (1)
Class LT-II-1-IO Class II-1-IO (2) (3)
Class LT-II-1-PO Class II-1-PO (4) (1)
Class LT-II-2-IO Class II-2-IO (2) (3)
Class LT-II-2-PO Class II-2-PO (4) (1)
Class LT-II-M-1 Class II-M-1 (2) (1)
Class LT-II-B-1 Class II-B-1 (2) (1)
Class LT-II-B-2 Class II-B-2 (2) (1)
Class LT-II-B-3 Class II-B-3 (2) (1)
Class LT-II-B-4 Class II-B-4 (2) (1)
Class LT-II-B-5 Class II-B-5 (2) (1)
Class LT-II-AR Class II-AR N/A N/A
----------------------
(1) This Group II Lower Tier REMIC Interest shall at all times have (and
principal shall be paid such that at all times it has) a Group II Lower
Tier REMIC Principal Amount equal to the Class Certificate Balance of the
Corresponding Class of Group II Certificates.
(2) This Group II Lower Tier Regular Interest shall have an interest rate
equal to the Pass-Through Rate of the Corresponding Class of Group II
Certificates. For federal income tax purposes, the Pass-Through Rate for
the Class II-M-1, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4
and Class II-B-5 Certificates and the Class LT-M-1, Class LT-II-B-1, Class
LT-II-B-2, Class LT-II-B-3, Class LT-II-B-4 and Class LT-II-B-5 Interests,
for any Distribution Date shall be expressed as a per annum rate equal to
the weighted average of (i) the interest rate for the Class PT-II-1B
Interest and (ii) the interest rate for the Class PT-II-2B Interest,
weighted on the basis of the respective Group II Pooling Tier Principal
Amounts of each such Group II Pooling Tier Interest (computed to at least
eight decimal places), immediately prior to such Distribution Date.
(3) This Group II Lower Tier Interest shall not be entitled to principal, but
shall have a notional amount equal to the Notional Amount of the
Corresponding Class of Group II Certificates.
(4) This Group II Lower Tier Interest shall not bear interest.
On each Distribution Date, Group II Available Funds shall be applied
to distributions on the Group II Lower Tier REMIC Interests, in each case in an
amount sufficient to make the distributions on the respective Corresponding
Class of Group II Certificates on such Distribution Date in accordance with the
provisions of Article IV; provided, (I) interest payable on the Class II-A-9
Certificates at a deemed rate of 0.25% (A) on a balance equal to the Class
Certificate Balance of the Class II-1-A-7 and (B) on a balance equal to the
Class Certificate Balance of the Class II-1-A-10 Certificates shall be deemed
paid to the Class LT-II-1-A-7 and Class II-1-A-10 Interests, respectively, and
(II) interest payable on the Class II-A-14 Certificates at a deemed rate of (i)
0.25% (A) on a balance equal to the Class Certificate Balance of the Class
II-1-A-1 Certificates, (B) on a balance equal to the Class Certificate Balance
of the Class II-1-A-5 and (C) on a balance equal to the Class Certificate
Balance of the Class II-1-A-13 Certificates shall be deemed paid to the Class
LT-II-1-A-1, Class II-1-A-5 and Class LT-II-1-A-13 Interests, respectively, (ii)
0.50% (A) on a balance equal to the Class Certificate Balance of the Class
II-1-A-8 and (B) on a balance equal to the Class Certificate Balance of the
Class II-1-A-11 Certificates shall be deemed paid to the Class LT-II-1-A-8 and
Class II-1-A-11 Interests, respectively, and (iii) 0.75% on a balance equal to
the Class Certificate Balance of the Class II-1-A-12 Certificates shall be
deemed payable on the Class LT-II-1-A-12 Interest.
As of any date, the Group II Lower Tier Principal Amount or notional
amount of each Group II Lower Tier Interest shall equal the Class Certificate
Balance or Notional Amount of the respective Corresponding Class of Group II
Certificates. Realized Losses, Fraud Losses, Special Hazard Losses, Bankruptcy
Losses, Deficient Valuations and Excess Losses shall be allocated to the Group
II Lower Tier Interests in the same manner as they are allocated to the
Corresponding Class of Group II Certificates pursuant to Article IV.
Any amounts remaining after distribution to the Group II Lower Tier
Interests as described above shall be distributed to the holders of the Class
II-AR Certificates in respect of the Class LT-II-AR Interest.
Group II Upper Tier REMIC
The Class II-1-A-1, Class II-1-A-2, Class II-1-A-3, Class II-1-A-4,
Class II-1-A-5, Class II-1-A-6, Class II-1-A-7, Class II-1-A-8, Class II-1-A-10,
Class II-1-A-11, Class II-1-A-12, Class II-1-A-13, Class II-1-A-15, Class
II-2-A-1, Class II-1-IO, Class II-1-PO, Class II-2-IO, Class II-2-PO, Class II-M
1, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4 and Class II-B-5
Interests will evidence "regular interests" in the Group II Upper Tier REMIC
created hereunder. The Class UT-II-AR Interest shall constitute the sole Class
of "residual interests" in the Group II Upper Tier REMIC and will be evidenced
by the Class II-I-AR Certificates.
The following table (to the extent it relates to the Group II
Certificates) sets forth the Class Certificate Balance and Pass-Through Rate for
each Class of Group II Certificates.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
------------------- ------------------ -------------------
Class I-1-A (6) (1) $436,337,000.00
Class I-2-A-1 (6) (2) $519,568,000.00
Class I-2-A-2 (6) (2) $57,730,000.00
Class I-M-1 (6) (3) $14,527,000.00
Class I-M-2 (6) (3) $9,146,000.00
Class I-M-3 (6) (3) $5,380,000.00
Class I-M-4 (6) (3) $5,380,000.00
Class I-M-5 (6) (3) $5,380,000.00
Class I-M-6 (6) (3) $5,380,000.00
Class I-M-7 (6) (3) $4,842,000.00
Class I-M-8 (6) (3) $5,380,000.00
Class I-CE (4) (4)
Class I-R (5) (5)
Class II-1-A-1 6.0000 $50,193,000.00
Class II-1-A-2 (7) $54,315,833.00
Class II-1-A-3 (8) $10,863,167.00
Class II-1-A-4 6.2500 $25,000.00
Class II-1-A-5 6.0000 $26,160,000.00
Class II-1-A-6 6.2500 $25,000.00
Class II-1-A-7 6.0000 $65,598,000.00
Class II-1-A-8 5.5750 $30,378,000.00
Class II-1-A-9 6.0000 $2,819,250.00
Class II-1-A-10 6.0000 $2,064,000.00
Class II-1-A-11 5.7500 $50,000,000.00
Class II-1-A-12 5.5000 $43,940,000.00
Class II-1-A-13 6.0000 $4,725,000.00
Class II-1-A-14 6.0000 $15,568,916.00
Class II-1-A-15 6.2500 $25,000.00
Class II-2-A-1 6.0000 $29,449,900.00
Class II-1-IO (10) $169,541,140.00
Class II-1-PO (9) $4,725,960.00
Class II-2-IO (11) $9,764,050.00
Class II-2-PO (9) $674,025.00
Class II-AR 6.0000 $100.00
Class II-M-1 (12) $8,530,000.00
Class II-B-1 (12) $5,555,000.00
Class II-B-2 (12) $3,174,000.00
Class II-B-3 (12) $1,984,000.00
Class II-B-4 (12) $1,190,000.00
Class II-B-5 (12) $3,174,478.00
--------------------------
(1) The Class I-1-A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR plus
the applicable Pass-Through Margin and (ii) the Subgroup I-1 Loan Group
Cap.
(2) The Class I-2-A-1 and Class I-2-A-2 Certificates will bear interest during
each Interest Accrual Period at a per annum rate equal to the lesser of
(i) LIBOR plus the applicable Pass-Through Margin and (ii) the Subgroup
I-2 Loan Group Cap.
(3) The Class I-M-1, Class I-M-2, Class I-M-3, Class I-M-4, Class I-M-5, Class
I-M-6, Class I-M-7 and Class I-M-8 Certificates will bear interest during
each Interest Accrual Period at a per annum rate equal to the lesser of
(i) LIBOR plus the applicable Pass-Through Margin and (ii) the Group I
Pool Cap.
(4) The Class I-CE Certificates will represent beneficial ownership of the
Class I-CE Interest, the Class I-IO Interest, the right to receive Class
I-IO Shortfalls, amounts in the Supplemental Interest Account, subject to
the obligation to pay Net Swap Payments to the Group I Swap Provider and
Basis Risk Carry Forward Amounts to the Group I LIBOR Certificates and,
without duplication, Group I Upper Tier Carry Forward Amounts to the Group
I LIBOR Certificates. For federal income tax purposes, the Trustee will
treat a Class I-CE Certificateholder's obligation to make payments to the
Group I LIBOR Certificates of Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account and the Supplemental Interest Account and,
without duplication, Group I Upper Tier Carry Forward Amounts from the
Supplemental Interest Account and the right to receive Class I-IO
Shortfalls as payments made or received pursuant to a notional principal
contract between the Class I-CE Certificateholders and the holder and the
right to receive Class I-IO Shortfalls of each Class of Group I LIBOR
Certificates. Such rights of the Class I-CE Certificateholders and Group I
LIBOR Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code. The Class I-CE Certificates do not have a Class
Certificate Balance.
(5) The Class I-R Certificates do not have a principal balance or an interest
rate. The Class I-R Certificates represent the residual interest in each
Group I Trust REMIC.
(6) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Group I Upper Tier REMIC Regular Interest but also
the right to receive payments from the Excess Reserve Fund Account and
Supplemental Interest Account in respect of any Basis Risk Carry Forward
Amounts and, without duplication, from the Supplemental Interest Account
in respect of Group I Upper Tier Carry Forward Amounts. Each of these
Certificates will also be subject to the obligation to pay Class I-IO
Shortfalls as described in Section 8.15. For federal income tax purposes,
any amount distributed on the Group I LIBOR Certificates on any such
Distribution Date in excess of the amount distributable on their
Corresponding Class of Group I Upper Tier Regular Interest on such
Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Account, as applicable,
and any amount distributable on such Group I Corresponding Class of Group
I Upper Tier Regular Interest on such Distribution Date in excess of the
amount distributable on the Group I Corresponding Class of Certificates on
such Distribution Date shall be treated as having been paid to the
Supplemental Interest Account, all pursuant to, and as further provided in
Section 8.15. For federal income tax purposes, the Trustee will treat a
Group I LIBOR Certificateholder's right to receive payments from the
Excess Reserve Fund Account and Supplemental Interest Account subject to
the obligation to pay Class I-IO Shortfalls as payments made or received
pursuant to a notional principal contract between the Class I-CE
Certificateholders and each Class of Group I LIBOR Certificates.
(7) Interest will accrue on the Class II-1-A-2 Certificates for the first 12
Distribution Dates at a per annum rate equal to (i) 5.000% plus (ii)
one-month LIBOR, subject to a maximum rate of 7.500% and a minimum rate of
5.000% and after the 12th Distribution Date, a fixed per annum rate of
6.000%. The per annum pass-through rate on the Class II-1-A-2 Certificates
for the first Interest Accrual Period is expected to be approximately
7.500%.
(8) Interest will accrue on the Class II-1-A-3 Certificates for the first 12
Distribution Dates at a per annum rate equal to (i) 12.500% minus (ii)
one-month LIBOR multiplied by a multiplier of 5, subject to a maximum rate
of 12.500% and a minimum rate of 0.000% and after the 12th Distribution
Date, a fixed per annum rate of 7.500%. The per annum pass-through rate on
the Class II-1-A-3 Certificates for the first Interest Accrual Period is
expected to be approximately 0.000%.
(9) The Class II-1-PO and Class II-2-PO Certificates are principal-only
certificates and will not be entitled to distributions in respect of
interest.
(10) The Class II-1-IO Certificates will receive distributions in respect of
interest on the Class II-1-IO Notional Amount at a per annum rate equal to
(i) the weighted average of the net mortgage interest rates of the
Mortgage Loans in Subgroup II-1 with net mortgages interest rates greater
than 6.250% minus (ii) 6.250%. The per annum rate on the Class II-1-IO
Certificates for the first Interest Accrual Period is expected to be
approximately 0.4965%.
(11) The Class II-2-IO Certificates will receive distributions in respect of
interest on the Class II-2-IO Notional Amount at a per annum rate equal to
(i) the Weighted Average of the Net Mortgage Interest Rates of the
Mortgage Loans in the Subgroup II-2 with net mortgage interest rates
greater than 6.000% minus (ii) 6.000%. The per annum rate on the Class
II-2-IO Certificates for the first Interest Accrual Period is expected to
be approximately 0.4477%.
(12) Interest will accrue on the Class II-M-1, Class I-B-1, Class II-B-2, Class
II-B-3, Class II-B-4 and Class II-B-5 Certificates at a per annum rate
equal to the weighted average of 6.2500% for Subgroup II-1 and 6.0000% for
Subgroup II-2, weighted on the basis of the portion of the aggregate
principal balance of the Class II-M-1, Class I-B-1, Class II-B-2, Class
II-B-3, Class II-B-4 and Class II-B-5 Certificates attributable to each
such subgroup. The per annum pass-through rate on the Class II-M-1, Class
I-B-1, Class II-B-2, Class II-B-3, Class II-B-4 and Class II-B-5
Certificates for the first Interest Accrual Period will be approximately
6.2298%.
Any amounts remaining after distribution to the Group II Lower Tier
Interests as described above shall be distributed to the holders of the Class
II-AR Certificates in respect of the Class UT-II-AR Interest.
The minimum denomination for each Class of the Offered Certificates
(other than the Class II-AR Certificates) will be $25,000 initial Class
Certificate Balance, with integral multiples of $1 in excess thereof, except
that one Certificate in each Class may be issued in a different amount. The
minimum denomination for (a) the Class I-R Certificates will be a 100%
Percentage Interest in such Class, (b) the Class II-AR Certificates will be $100
initial Class Certificate Balance, (c) the Class I-CE Certificates will be a 1%
Percentage Interest in such Class and (d) each Class of Interest Only
Certificates will be a 1% Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates All Classes of Certificates other than the
Physical Certificates.
Class I-A Certificates Class I-1-A, Class I-2-A-1 and Class I-2-A-2.
Class I-M Certificates Class I-M-1, Class I-M-2, Class I-M-3, Class
I-M-4, Class I-M-5, Class I-M-6, Class I-M-7
and Class I-M-8 Certificates.
Class II-A Certificates Class II-1-A-1, Class II-1-A-2, Class
II-1-A-3, Class II-1-A-4, Class II-1-A-5,
Class II-1-A-6, Class II-1-A-7, Class
II-1-A-8, Class II-1-A-9, Class II-1-A-10,
Class II-1-A-11, Class II-1-A-12, Class
II-1-A-13, Class II-1-A-14, Class II-1-A-15,
Class II-1-PO, Class II-1-IO, Class II-AR,
Class II-2-A-1, Class II-2-PO and Class
II-2-IO Certificates.
Class II-B Certificates Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4 and Class II-B-5 Certificates.
Class PO Certificates Class II-1-PO and Class II-2-PO Certificates.
ERISA-Restricted Certificates The Class II-B-3, Class II-B-4, Class II-B-5
Certificates, the Physical Certificates and
any Certificate with a rating below the
lowest applicable permitted rating under the
Underwriters' Exemption.
Group I Certificates Class I-A, Class I-M, Class I-R and Class
I-CE Certificates.
Group I LIBOR Certificates Class I-A and Class I-M Certificates.
Group I Offered Certificates Class I-2-A-1, Class I-2-A-2, and Class I-M
Certificates.
Group I Principal Certificates The Group I LIBOR Certificates.
Group I Subordinated Certificates Class I-M Certificates.
Group II Certificates Class II-A, Class II-M-1 and Class II-B
Certificates.
Group II LIBOR Certificates Class II-1-A-2 and Class II-1-A-3
Certificates.
Group II Offered Certificates Class II-1, Class II-M, Class II-B-1 and
Class II-B-2 Certificates.
Group II Senior Certificates Class II-A Certificates.
Group II Subordinate Certificates Class II-M and Class II-B Certificates.
Interest Only Certificates Class II-1-A-9, Class II-1-A-14, Class
II-1-IO and Class II-2-IO Certificates.
LIBOR Certificates The Group I LIBOR Certificates and the Group
II LIBOR Certificates.
Offered Certificates The Group I Offered Certificates and the
Group II Offered Certificates.
Physical Certificates The Class I-R, Class I-CE and Class II-AR
Certificates.
Private Certificates The Class I-1-A, Class I-R, Class I-CE, Class
II-B-3, Class II-B-4 and Class II-B-5
Certificates.
Rating Agencies Xxxxx'x, DBRS and S&P.
Regular Certificates All Classes of Certificates other than the
Class I-R, Class I-CE and Class II-AR
Certificates.
Residual Certificates The Class I-R and Class II-AR Certificates.
Subgroup I-1 Certificates Class I-1-A Certificates.
Subgroup I-2 Certificates Class I-2-A-1, Class I-2-A-2 Certificates.
Subgroup II-1 Certificates Class II-1-A-1, Class II-1-A-2, Class
II-1-A-3, Class II-1-A-4, Class II-1-A-5,
Class II-1-A-6, Class II-1-A-7, Class
II-1-A-8, Class II-1-A-9, Class II-1-A-10,
Class II-1-A-11, Class II-1-A-12, Class
II-1-A-13, Class II-1-A-14, Class II-1-A-15,
Class II-1-PO and Class II-1-IO Certificates.
Subgroup II-2 Certificates Class II-AR, Class II-2-A-1, Class II-2-PO
and Class II-2-IO Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the related Servicing
Agreement or related Sale Agreement, as applicable. Whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Account: Any of the Distribution Account, the Collection Account or
the Supplemental Interest Account. Each Account shall be an Eligible Account.
Additional Disclosure Notification: As defined in Section 8.14(b).
Additional Form 10-D Disclosure: As defined in Section 8.14(b).
Additional Form 10-K Disclosure: As defined in Section 8.14(c).
Adjusted Net Mortgage Interest Rate: As to each Group I Mortgage
Loan and at any time, the per annum rate equal to the Mortgage Interest Rate
less the applicable Expense Fee Rate.
Adjustment Amount: For the Special Hazard Loss Coverage Amount and,
with respect to each anniversary of April 1, 2007, the amount, if any, by which
such Special Hazard Loss Coverage Amount (without giving effect to the deduction
of the Adjustment Amount for such anniversary) exceeds the greatest of (x) the
product of 1% and the outstanding principal balance of the Group II Mortgage
Loans on the Distribution Date immediately preceding such anniversary, (y) the
outstanding principal balance of the Group II Mortgage Loans secured by
Mortgaged Properties in the highest California zip code concentration on the
Distribution Date immediately preceding such anniversary, and (z) twice the
outstanding principal balance of the Group II Mortgage Loans that has the
largest outstanding principal balance on the Distribution Date immediately
preceding such anniversary.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" 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 Subordinate Percentage: With respect to the Group II
Subordinate Certificates and any Distribution Date, the sum of the Class
Certificate Balances of the Group II Subordinate Certificates immediately prior
to such Distribution Date divided by the aggregate of the Stated Principal
Balances of the Group II Mortgage Loans (net of the PO Percentage of the Stated
Principal Balance of each Discount Loan)
Agreement: This Trust Agreement and all amendments or supplements
hereto.
Allocable Share: With respect to any Distribution Date and any Class
of Group II Subordinate Certificates, the portion of the Group II Subordinate
Optimal Principal Amount allocable to such Class, equal to the product of the
Group II Subordinate Optimal Principal Amount for each Subgroup of Group II in
the aggregate on such Distribution Date and a fraction, the numerator of which
is the related Class Certificate Balance of that Class and the denominator of
which is the aggregate of the Class Certificate Balances of the Group II
Subordinate Certificates; provided, that no Class of Group II Subordinate
Certificates will be entitled on any Distribution Date to receive distributions
pursuant to clauses (5), (6), and (7) of the definition of Group II Subordinate
Optimal Principal Amount with respect to any Subgroup of Group II unless the
Class Prepayment Distribution Trigger for that class is satisfied for that
Distribution Date; if the Class Prepayment Distribution Trigger is not satisfied
for an outstanding class of Group II Subordinate Certificates, those amounts
will be distributable to the remaining Classes of Group II Subordinate
Certificates for which the Class Prepayment Distribution Trigger is satisfied,
pro rata, according to Class Certificate Balance.
Amount Available for Subgroup II-1 Principal: As to any Distribution
Date, Group II Available Funds for such Distribution Date reduced by the
aggregate amount distributable on such Distribution Date in respect of interest
on the Subgroup II-1 Certificates pursuant to Section 4.02(b) priority first
sub-clause (i).
Amount Available for Subgroup II-2 Principal: As to any Distribution
Date, Group II Available Funds for such Distribution Date reduced by the
aggregate amount distributable on such Distribution Date in respect of interest
on the Subgroup II-2 Certificates pursuant to Section 4.02(b) priority first
sub-clause (ii).
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Trustee by the Depositor.
Apportioned Subordinate Principal Distribution Amount: With respect
to the Group II Subordinate Certificates and any Distribution Date, the product
of (i) the aggregate Group II Subordinate Principal Distribution Amount net of
amounts applied from the Group II Subordinate Principal Distribution Amount to
pay the Group II PO Deferred Amounts and (ii) a fraction the numerator of which
is equal to the Group II Subordinate Optimal Principal Amount for the Subgroup
of Group II whose Group II Senior Certificates have been reduced to zero, and
the denominator of which is equal to the aggregate of the Group II Subordinate
Optimal Principal Amount with respect to each Subgroup of Group II.
Applied Realized Loss Amount: With respect to any Group I
Certificate, a Group I Applied Realized Loss Amount.
Assignment Agreements: The Countrywide Assignment Agreement and the
Xxxxx Fargo Assignment Agreement.
Assignment of Mortgage: An executed assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss Coverage Amount: With respect to any Distribution
Date, an amount equal to approximately $150,000, minus the aggregate amount of
previous Deficient Valuations and Debt Service Reductions. As of any
Distribution Date on or after the Cross-Over Date, the Bankruptcy Loss Coverage
Amount will be zero. The Bankruptcy Loss Coverage Amount may be reduced or
modified upon written confirmation from the Rating Agencies that the reduction
or modification will not adversely affect the then current ratings of the Group
II Senior Certificates by the Rating Agencies.
Basic Principal Distribution Amount: With respect to Group I and any
Distribution Date, the excess of (i) the aggregate Group I Principal Remittance
Amount for that Distribution Date over (ii) the Excess Subordinated Amount, if
any, for that Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of Group
I LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Group I LIBOR
Certificates is based upon the Subgroup I-1 Loan Group Cap, the Subgroup I-2
Loan Group Cap or the Group I Pool Cap, as applicable, the excess, if any, of
(i) the Group I Accrued Certificate Interest Distribution Amount such Class of
Certificates would otherwise be entitled to receive on such Distribution Date
had such Pass-Through Rate not been subject to the Subgroup I-1 Loan Group Cap,
the Subgroup I-2 Loan Group Cap or the Group I Pool Cap, as applicable, over
(ii) the Group I Accrued Certificate Interest Distribution Amount payable on
such Class of Certificates on such Distribution Date giving effect to (a) with
respect to the Class I-1-A Certificates, the Subgroup I-1 Loan Group Cap, (b)
with respect to the Class I-2-A Certificates, the Subgroup I-2 Loan Group Cap,
and (c) with respect to each other Class of Group I LIBOR Certificates, the
Group I Pool Cap, and (B) the portion of any such excess described in clause (A)
for such Class of Certificates from all previous Distribution Dates not
previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date, without giving effect to the Subgroup I-1 Loan Group Cap, the
Subgroup I-2 Loan Group Cap or the Group I Pool Cap, as applicable.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class I-CE Distributable Amount (prior to any
reduction for (x) amounts paid from the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which each Servicer's servicing operations
are located or (c) any State in which the Trustee's Corporate Trust Office is
located, are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Group: The Group I Certificates or Group II
Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any Affiliate of the Depositor in
determining which Certificates are registered in the name of an Affiliate of the
Depositor.
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class Certificate Balance: With respect to any Class of Certificates
(other than Class I-CE and Class I-R and any Class of Interest Only
Certificates), at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof (i) minus all distributions of principal previously made
with respect thereto minus (ii) the principal portion of all Realized Loss or
Applied Realized Loss Amounts, as applicable, allocated to such Class of
Certificates on previous Distribution Dates and, (iii) in the case of a class of
Group II Subordinate Certificates, minus the portion, if any, of any Group II
Subordinate Certificate Writedown Amount allocated to that Class for previous
Distribution Dates; provided, however, that the Class Certificate Balance of the
Class II-1-A-4 Certificates shall be increased by the amount of the Class
II-1-A-4 Accrual Amount distributed on previous Distribution Dates, the Class
Certificate Balance of the Class II-1-A-6 Certificates shall be increased by the
amount of the Class II-1-A-6 Accrual Amount distributed on previous Distribution
Dates, and the Class Certificate Balance of the Class II-1-A-15 Certificates
shall be increased by the amount of the Class II-1-A-15 Accrual Amount
distributed on previous Distribution Dates, provided, further, that immediately
following the Distribution Date on which a Subsequent Recovery for the related
Loan Group is distributed, the Class Certificate Balances of any Class or
Classes of Certificates that have been previously reduced by Realized Losses or
Applied Realized Loss Amounts, as applicable, shall be increased, in order of
seniority, by the amount of the Subsequent Recovery for such Loan Group
distributed on such Distribution Date (up to the amount of Realized Losses or
Applied Realized Loss Amounts, as applicable, allocated to such Class or Classes
of Certificates). The Class I-CE and Class I-R Certificates and each Class of
Interest Only Certificates have no Class Certificate Balance.
Class I-2-A Certificates: The Class I-2-A-1 and Class I-2-A-2
Certificates.
Class I-A Certificates: As specified in the Preliminary Statement.
Class I-A Principal Allocation Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, determined as
follows: (A) with respect to the Class I-1-A Certificates, a fraction, the
numerator of which is (x) the portion of the Group I Principal Remittance Amount
for such Distribution Date that is attributable to the principal received or
advanced on the Subgroup I-1 Mortgage Loans and the denominator of which is (y)
the Group I Principal Remittance Amount for such Distribution Date; and (B) with
respect to the Class I-2-A Certificates, a fraction, the numerator of which is
(x) the portion of the Group I Principal Remittance Amount for such Distribution
Date that is attributable to the principal received or advanced on the Subgroup
I-2 Mortgage Loans and the denominator of which is (y) the Group I Principal
Remittance Amount for such Distribution Date.
Class I-A Principal Distribution Amount: With respect to any
Distribution Date is the excess of (a) the aggregate Class Certificate Balance
of the Class I-A Certificates immediately prior to such Distribution Date over
(b) the lesser of (x) 88.40% of the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date and (y) the excess, if any, of
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class I-CE Certificates: All Certificates bearing the Class
designation of "Class I-CE."
Class I-CE Distributable Amount: On any Distribution Date, the sum
of (i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class I-CE Interest (as set forth in the Preliminary Statement)
and not applied as an Extra Principal Distribution Amount on such Distribution
Date, plus any such accrued interest remaining undistributed from prior
Distribution Dates, plus (without duplication), (ii) as a distribution in
respect of principal, any portion of the principal balance of the Class I-CE
Interest that is distributable as a Subordination Reduction Amount, minus (iii)
any Defaulted Swap Termination Payment payable from Group I Available Funds to
the Group I Swap Provider and any amounts paid from the Excess Reserve Fund
Account to pay Basis Risk Carry Forward Amounts.
Class I-CE Interest: The Group I Upper Tier REMIC Regular Interest
represented by the Class I-CE Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class I-IO Interest: As specified in the Preliminary Statement.
Class I-IO Shortfalls: As defined in Section 8.15. For the avoidance
of doubt, the Class I-IO Shortfall for any Distribution Date shall equal the
amount payable to the Class I-CE Certificates in respect of amounts due to the
Group I Swap Provider on such Distribution Date (other than Defaulted Swap
Termination Payments) in excess of the amount payable on the Class I-CE Interest
(prior to reduction for any Basis Risk Payments or Defaulted Swap Termination
Payments) or Class I-IO Interest on such Distribution Date, all as further
provided in Section 8.15.
Class I-LT-R Interest: The sole Class of "residual interest" in the
Group I Lower Tier REMIC evidenced by the Class I-R Certificates.
Class I-M Certificates: As specified in the Preliminary Statement.
Class I-M-1 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date) and (b) the Class Certificate Balance of the Class I-M-1
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 91.10% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (b) the excess, if any, of the aggregate
Stated Principal Balance of the Group I Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class I-M-2 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date) and (c) the Class
Certificate Balance of the Class I-M-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 92.80% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such Distribution Date and
(b) the excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over the Overcollateralization Floor.
Class I-M-3 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for such
Distribution Date) and (d) the Class Certificate Balance of the Class I-M-3
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 93.80% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (b) the excess, if any, of the aggregate
Stated Principal Balance of the Group I Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class I-M-4 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class I-M-3
Certificates (after taking into account the distribution of the Class I-M-3
Principal Distribution Amount for such Distribution Date) and (e) the Class
Certificate Balance of the Class I-M-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 94.80% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such Distribution Date and
(b) the excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over the Overcollateralization Floor.
Class I-M-5 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class I-M-3
Certificates (after taking into account the distribution of the Class I-M-3
Principal Distribution Amount for such Distribution Date), (e) the Class
Certificate Balance of the Class I-M-4 Certificates (after taking into account
the distribution of the Class I-M-4 Principal Distribution Amount for such
Distribution Date) and (f) the Class Certificate Balance of the Class I-M-5
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 95.80% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (b) the excess, if any, of the aggregate
Stated Principal Balance of the Group I Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class I-M-6 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class I-M-3
Certificates (after taking into account the distribution of the Class I-M-3
Principal Distribution Amount for such Distribution Date), (e) the Class
Certificate Balance of the Class I-M-4 Certificates (after taking into account
the distribution of the Class I-M-4 Principal Distribution Amount for such
Distribution Date), (f) the Class Certificate Balance of the Class I-M-5
Certificates (after taking into account the distribution of the Class I-M-5
Principal Distribution Amount for such Distribution Date) and (g) the Class
Certificate Balance of the Class I-M-6 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 96.80% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such Distribution Date and
(b) the excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for such Distribution Date over the Overcollateralization Floor.
Class I-M-7 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class I-M-3
Certificates (after taking into account the distribution of the Class I-M-3
Principal Distribution Amount for such Distribution Date), (e) the Class
Certificate Balance of the Class I-M-4 Certificates (after taking into account
the distribution of the Class I-M-4 Principal Distribution Amount for such
Distribution Date), (f) the Class Certificate Balance of the Class I-M-5
Certificates (after taking into account the distribution of the Class I-M-5
Principal Distribution Amount for such Distribution Date), (g) the Class
Certificate Balance of the Class I-M-6 Certificates (after taking into account
the distribution of the Class I-M-6 Principal Distribution Amount for such
Distribution Date) and (h) the Class Certificate Balance of the Class I-M-7
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 97.70% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (b) the excess, if any, of the aggregate
Stated Principal Balance of the Group I Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class I-M-8 Principal Distribution Amount: With respect to any
Distribution Date is the excess of (i) the sum of (a) the aggregate Class
Certificate Balances of the Class I-A Certificates (after taking into account
the distribution of the Class I-A Principal Distribution Amount for that
Distribution Date), (b) the Class Certificate Balance of the Class I-M-1
Certificates (after taking into account the distribution of the Class I-M-1
Principal Distribution Amount for that Distribution Date), (c) the Class
Certificate Balance of the Class I-M-2 Certificates (after taking into account
the distribution of the Class I-M-2 Principal Distribution Amount for that
Distribution Date), (d) the Class Certificate Balance of the Class I-M-3
Certificates (after taking into account the distribution of the Class I-M-3
Principal Distribution Amount for that Distribution Date), (e) the Class
Certificate Balance of the Class I-M-4 Certificates (after taking into account
the distribution of the Class I-M-4 Principal Distribution Amount for that
Distribution Date), (f) the Class Certificate Balance of the Class I-M-5
Certificates (after taking into account the distribution of the Class I-M-5
Principal Distribution Amount for that Distribution Date), (g) the Class
Certificate Balance of the Class I-M-6 Certificates (after taking into account
the distribution of the Class I-M-6 Principal Distribution Amount for that
Distribution Date) (h) the Class Certificate Balance of the Class I-M-7
Certificates (after taking into account the distribution of the Class I-M-7
Principal Distribution Amount for that Distribution Date) and (i) the Class
Certificate Balance of the Class I-M-8 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (a) 98.70% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans for that Distribution Date and
(b) the excess, if any, of the aggregate Stated Principal Balance of the Group I
Mortgage Loans for that Distribution Date over the Overcollateralization Floor.
Class I-R Certificates: All Certificates bearing the Class
designation of "Class I-R."
Class I-UT-R Interest: The sole Class of "residual interest" in the
Group I Upper Tier REMIC evidenced by the Class I-R Certificates.
Class II-1-A-4 Accretion Termination Date: The earlier to occur of:
(1) the Distribution Date following the Distribution Date on which the aggregate
Class Certificate Balance of the Class II-1-A-2 and Class II-1-A-3 Certificates
is reduced to zero; and (2) the Distribution Date following the Cross-Over Date.
Class II-1-A-4 Accrual Amount: For any Distribution Date prior to
Class II-1-A-4 Accretion Termination Date, the amount of interest that would
otherwise have been distributable as Group II Accrued Certificate Interest to
the Class II-1-A-4 Certificates if such amount had not been added to the Class
Certificate Balance of the Class II-1-A-4 Certificates.
Class II-1-A-6 Accretion Termination Date: The earlier to occur of:
(1) the Distribution Date following the Distribution Date on which the aggregate
Class Certificate Balance of the Class II-1-A-5 Certificates is reduced to zero;
and (2) the Distribution Date following the Cross-Over Date.
Class II-1-A-6 Accrual Amount: For any Distribution Date prior to
Class II-1-A-6 Accretion Termination Date, the amount of interest that would
otherwise have been distributable as Group II Accrued Certificate Interest to
the Class II-1-A-6 Certificates if such amount had not been added to the Class
Certificate Balance of the Class II-1-A-6 Certificates.
Class II-1-A-15 Accretion Termination Date: The earlier to occur of:
(1) the Distribution Date following the Distribution Date on which the aggregate
Class Certificate Balance of the Class II-1-A-8 Certificates are reduced to
zero; and (2) the Distribution Date following the Cross-Over Date.
Class II-1-A-15 Accrual Amount: For any Distribution Date prior to
Class II-1-A-15 Accretion Termination Date, the amount of interest that would
otherwise have been distributable as Group II Accrued Certificate Interest to
the Class II-1-A-15 Certificates if such amount had not been added to the Class
Certificate Balance of the Class II-1-A-15 Certificates.
Class II-A Certificates: As specified in the Preliminary Statement.
Class II-AR Certificates: All Certificates bearing the Class
designation of "Class II-AR."
Class II-IO Interest: As specified in the Preliminary Statement.
Class LT-II-AR Interest: The sole class of "residual interest" in
the Group II Lower Tier REMIC.
Class PO Certificates: As specified in the Preliminary Statement.
Class PO Deferred Payment Writedown Amount: With respect to any
Distribution Date, the amount, if any, distributed on that Distribution Date in
respect of any Group II PO Deferred Amounts pursuant to priority third of the
first paragraph under Section 4.01(b).
Class Prepayment Distribution Trigger: With respect to a Class of
Group II Subordinate Certificates and any Distribution Date, is satisfied if
either (i) the Fractional Interest for such Class for such date equals or
exceeds the Fractional Interest for such Class calculated as of the date of
issuance of the Certificates, or (ii) that Class of Group II Subordinate
Certificates is the only Class of Group II Subordinate Certificates then
Outstanding.
Class PTI-A-R Interest: The sole Class of "residual interest" in the
Group I Pooling Tier REMIC-A as described in the Preliminary Statement and the
related footnote thereto.
Class PTI-B-R Interest: The sole Class of "residual interest" in the
Group I Pooling Tier REMIC-B as described in the Preliminary Statement and the
related footnote thereto.
Class PT-II-AR Interest: The sole class of "residual interest" in
the Group II Pooling Tier REMIC.
Class UT-II-AR Interest: The sole class of "residual interest" in
the Group II Upper Tier REMIC.
Closing Date: March 29, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in each
Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and Loan Group, the
lesser of (a) the Prepayment Interest Shortfall for such Loan Group, if any, for
such Distribution Date, with respect to voluntary Principal Prepayments for such
Loan Group by the Mortgagor, and (b) in the case of Loan Group I and Countrywide
Servicing only, one half of the lesser of (1) the Servicing Fee payable to
Countrywide Servicing for such Distribution Date and (2) the Servicing Fee
actually received by Countrywide Servicing for such Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration-BC0702, facsimile no. (714)
247-6478, and which is the address to which notices to and correspondence with
the Trustee should be directed.
Countrywide Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of the Closing Date, among Countrywide Home
Loans Servicing LP, Countrywide Home Loans Inc., the Trustee, the Sponsors and
the Depositor, relating to the Group I Mortgage Loans, a copy of which is
attached hereto as Exhibit N-2.
Countrywide Home Loans: Countrywide Home Loans, Inc., a New York
corporation, and its successors in interest.
Countrywide Amendment Reg AB: The Countrywide Amendment Reg AB,
dated as of August 30, 2006, to the Countrywide Sale Agreement and the
Countrywide Servicing Agreement, between Barclays Bank PLC and Countrywide Home
Loans, a copy of which is attached hereto as Exhibit U.
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated August 30, 2006, between Barclays Bank PLC and Countrywide Home
Loans, as amended by the Countrywide Amendment Reg AB, a copy of which is
attached hereto as Exhibit L-2.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreement: The Servicing Agreement, dated
August 30, 2006, between Barclays Bank PLC and Countrywide Servicing, as amended
by the Countrywide Amendment Reg AB, a copy of which is attached hereto as
Exhibit M.
Cross-Over Date: The Distribution Date on which the Class
Certificate Balances of the Group II Subordinate Certificates have been reduced
to zero.
Cumulative Loss Percentages: With respect to any Distribution Date
and Loan Group I, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Realized Losses for Loan Group I incurred from
the Cut-off Date to the last day of the calendar month preceding the month in
which such Distribution Date occurs and the denominator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
Cut-off Date.
Cumulative Loss Trigger Event: If, with respect to any Distribution
Date, the circumstances in which the aggregate amount of Realized Losses for
Loan Group I incurred since the Cut-off Date through the last day of the related
Due Period divided by the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the Cut-off Date exceeds the applicable percentages
described below with respect to such Distribution Date:
Distribution Date Occurring In Cumulative Loss Percentage
------------------------------ ---------------------------------------------
April 2009 through March 0.20% for the first month, plus an additional
2010 1/12th of
0.30% for each month thereafter
April 2010 through March 0.50% for the first month, plus an additional
2011 1/12th of
0.40% for each month thereafter
April 2011 through March 0.90% for the first month, plus an additional
2012 1/12th of
0.35% for each month thereafter
April 2012 through March 1.25% for the first month, plus an additional
2013 1/12th of
0.25% for each month thereafter
April 2013 and thereafter 1.50% with respect to April 2013
Custodial File: With respect to each Mortgage Loan, all Mortgage
Loan Documents which are delivered to the Custodian or which at any time comes
into the possession of the Custodian.
Custodian: Xxxxx Fargo Bank, National Association, a national
banking association, and its successors in interest and, if any successor
custodian is appointed hereunder, such successor.
Custodian Fee: With respect to any Distribution Date (commencing
with the April 2007 Distribution Date), the amount charged by the Custodian to
the Trustee for custodial services with respect to the Mortgage Loans performed
by the Custodian during the preceding calendar month (commencing with the month
of April 2007), based on a custodial fee schedule furnished by the Custodian to
the Trustee.
Cut-off Date: March 1, 2007.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
DBRS: DBRS, Inc. and its successors, and if such company shall for
any reason no longer perform the functions of a securities rating agency, "DBRS"
shall be deemed to refer to any other "nationally recognized statistical rating
organization" as set forth on the most current list of such organizations
released by the Commission. For purposes of Section 10.05(b) the address for
notices to DBRS shall be DBRS, Inc., 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address as DBRS may hereafter furnish to the Depositor, the
Custodian and the Trustee.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust out of the Group I Available Funds to the Group
I Swap Provider pursuant to the Group I Interest Rate Swap Agreement as a result
of an "Event of Default" (as defined in the Group I Interest Rate Swap
Agreement) with respect to which the Group I Swap Provider is the defaulting
party or a Termination Event (as defined in the Group I Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Group I Interest Rate Swap Agreement )) with
respect to which the Group I Swap Provider is the sole Affected Party (as
defined in the Group I Interest Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by the applicable Original Loan Seller, the Purchasers or the
Depositor in accordance with the terms of the applicable Sale Agreement, the
applicable Assignment Agreement, the Representation Letter or this Agreement, as
applicable, or which is, in the case of a substitution pursuant to the
applicable Sale Agreement or the applicable Assignment Agreement, replaced or to
be replaced with a substitute mortgage loan.
Delinquency Trigger Event: With respect to any Distribution Date,
the circumstances in which the quotient (expressed as a percentage) of (x) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans with respect to the Group I Mortgage Loans only,
divided by (y) the aggregate unpaid principal balance of the Group I Mortgage
Loans, as of the last day of the related Due Period, equals or exceeds 40.00% of
the prior period's Senior Enhancement Percentage.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Class Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
Depositor: BCAP LLC, a Delaware limited liability company, and its
successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's, "R-1 (high)" by DBRS and "A-1" by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Servicer Remittance Date,
the Business Day immediately preceding such Servicer Remittance Date.
Discount Loans: Any of the Subgroup II-1 Discount Loans or Subgroup
II-2 Discount Loans, as applicable.
Disqualified Non-U.S. Person: With respect to a Residual
Certificate, (i) any Non-U.S. Person or agent thereof other than a Non-U.S.
Person that holds the 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 IRS Form W-8ECI, or (ii) any domestic entity
classified as a partnership under the Code if any of its direct or indirect
partners (other than through a U.S. corporation) are (or are permitted to be
under the applicable partnership agreement) Disqualified Non-U.S. Persons,
unless such Person described in (i) or (ii) above has delivered to both the
transferor and the Trustee an opinion of a nationally recognized tax counsel to
the effect that the transfer of the Residual Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated thereunder and
that such transfer of the Residual Certificate will not be disregarded for
federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.01(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered holders of BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in April
2007.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee.
Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated at least "A-1+" by Standard &
Poor's if the amounts on deposit are to be held in the account for no more than
365 days (or at least "A-2" by Standard & Poor's if the amounts on deposit are
to be held in the account for no more than 30 days), or the long-term unsecured
debt obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "P-1" by Moody's or "R-1" by DBRS (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Trustee) (in each case to the extent they are designated as Rating
Agencies in the Preliminary Statement).
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 Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: With respect to each Servicer, as defined in the
related Servicing Agreement.
Excess Losses: With respect to Group II, Special Hazard Losses in
excess of the related Special Hazard Loss Coverage Amount, Bankruptcy Losses in
excess of the related Bankruptcy Loss Coverage Amount and Fraud Loss in excess
of the related Fraud Loss Coverage Amount.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.01(a) in the name of the
Trustee for the benefit of the Group I Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of BCAP
LLC Trust 2007-AA2, Mortgage Pass-Through Certificates, Series 2007-AA2." Funds
in the Excess Reserve Fund Account shall be held in trust for the Group I
Regular Certificateholders for the uses and purposes set forth in this
Agreement. Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Excess Subordinated Amount: With respect to any Distribution Date
and Group I, the excess, if any, of (a) the Subordinated Amount for such
Distribution Date over (b) the Specified Subordinated Amount for such
Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and, with respect to the Group I Mortgage
Loans and if applicable, any lender paid mortgage insurance premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the Total Monthly Excess Spread for such Distribution Date and
(y) the Subordination Deficiency for such Distribution Date.
Xxxxxx Mae: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Group I Certificates is the Distribution Date occurring
in May 2047, the Final Scheduled Distribution Date for each Class of Subgroup
II-1 Certificates is the Distribution Date occurring in April 2037 and the Final
Scheduled Distribution Date for each Class of Subgroup II-2 is the Distribution
Date occurring in March 2022.
Force Majeure Event: As described in Section 8.18(1).
Form 8-K Disclosure Information: As defined in Section 8.14(g).
Fractional Interest: With respect to any Distribution Date and each
Class of Group II Subordinate Certificates, a fraction (expressed as a
percentage), the numerator of which is the aggregate Class Certificate Balance
of such Class and each Class of Group II Subordinate Certificates subordinate to
such Class, if any, and the denominator of which is the aggregate Stated
Principal Balance of the Group II Mortgage Loans.
Fraud Loan: A Liquidated Loan as to which a Fraud Loss has occurred.
Fraud Loss: With respect to Group II, any Realized Losses for Group
II incurred by reason of a default arising from fraud, dishonesty or
misrepresentation in the origination of the related Group II Mortgage Loan.
Fraud Loss Coverage Amount: With respect to Group II and any
Distribution Date, the amount set forth in the following table for the indicated
period:
Period Fraud Loss Coverage Amount
--------------------------------- ----------------------------------------------
Closing Date through March 2008 3.00% of the aggregate Group II Cut-Off Date
Pool Balance minus the aggregate amount of
Fraud Loss that would have been allocated to
the Group II Subordinate Certificates in the
absence of the Loss Allocation Limitation
since the Cut-Off Date
April 2008 through March 2009 2.00% of the aggregate Group II Cut-off Date
Pool Balance minus the aggregate amount of
Fraud Loss that would have been allocated to
the Group II Subordinate Certificates in the
absence of the Loss Allocation Limitation
since the Cut-Off Date
April 2009 through March 2012 1.00% of the aggregate Group II Cut-Off Date
Pool Balance minus the aggregate amount of
Fraud Loss that would have been allocated to
the Group II Subordinate Certificates in the
absence of the Loss Allocation Limitation
since the Cut-Off Date
After the earlier to occur of $0
April 2012 and the Cross-Over
Date
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Gross Margin: The fixed percentage amount set forth in the related
Mortgage Note to be added to the applicable Index to determine the Mortgage
Rate.
Group: With respect to the Certificates, the related Certificate
Group and with respect to the Mortgage Loans, the related Loan Group.
Group I: With respect to Certificates, the Group I Certificates and
with respect to Mortgage Loans, the Group I Mortgage Loans.
Group I Accrued Certificate Interest Distribution Amount: With
respect to any Distribution Date for each Class of Group I LIBOR Certificates,
the amount of interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the related Class Certificate Balance
immediately prior to such Distribution Date, as reduced by such Class' share of
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date allocated to such Class pursuant to Section 4.01.
Group I Applied Realized Loss Amount: With respect to any
Distribution Date, the amount, if any, by which the aggregate Class Certificate
Balance of the Group I Principal Certificates after distributions of principal
on such Distribution Date exceeds the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date.
Group I Available Funds: With respect to any Distribution Date and
the Group I Mortgage Loans, to the extent received by the Trustee (x) the sum of
(i) all scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Group I Mortgage Loans in the related Due
Period and received by the related Servicer on or prior to the related
Determination Date, together with any Monthly Advances in respect thereof; (ii)
all Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and
Subsequent Recoveries received by the related Servicer on the Group I Mortgage
Loans during the related Prepayment Period (in each case, net of unreimbursed
expenses incurred in connection with a liquidation or foreclosure and
unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Group I Mortgage Loans received by the related Servicer during the related
Prepayment Period together with all Compensating Interest paid by the related
Servicer in connection therewith (excluding any Prepayment Premiums); (iv) all
Substitution Adjustment Amounts with respect to substitutions of Group I
Mortgage Loans that occur on or prior to the related Determination Date; (v) all
amounts received with respect to such Distribution Date as the Repurchase Price
in respect of a Group I Mortgage Loan repurchased on or prior to the related
Determination Date; and (vi) the proceeds received with respect to the
termination of the Loan Group I pursuant to clause (a) of Section 9.01; reduced
by (y) amounts in reimbursement for Advances previously made with respect to the
Group I Mortgage Loans and other amounts as to which the related Servicer, the
Depositor, the Custodian or the Trustee are entitled to be paid or reimbursed
pursuant to this Agreement.
Group I Certificates: As specified in the Preliminary Statement.
Group I Corresponding Actual Crossover Distribution Date: For each
Group I Pooling Tier REMIC-B IO Interest, the related Group I Corresponding
Scheduled Crossover Distribution Date, unless on such date two times the
aggregate Group I Pooling Tier REMIC-B IO Notional Balance of each other Group I
Pooling Tier REMIC-B IO Interest then outstanding is less than the scheduled
swap notional amount of the Interest Rate Swap Agreement applicable for such
Distribution Date, in which case the Group I Corresponding Actual Crossover
Distribution Date for such Group I Pooling Tier REMIC-B IO Interest shall be the
first Distribution Date thereafter on which two times the Group I Pooling Tier
REMIC-B IO Notional Balance of each other Group I Pooling Tier REMIC-B IO
Interest then outstanding is greater than or equal to the scheduled swap
notional amount of the Interest Rate Swap Agreement.
Group I Corresponding Class: The Class of interests in the Group I
Lower Tier REMIC or Group I Upper Tier REMIC created under this Agreement that
corresponds to the Class of interests in the other such Group I Trust REMIC, as
applicable, or to a Class of Certificates in the manner set out below:
Group I Corresponding Group I Corresponding
Lower Tier REMIC Upper Tier REMIC Group I Corresponding
Regular Interest Regular Interest Class of Certificates
------------------------ ---------------------- -----------------------
Class LT-I-1-A Class I-1-A Class I-1-A
Class LT-I-2-A-1 Class I-2-A-1 Class I-2-A-1
Class LT-I-2-A-2 Class X-0-X-0 Xxxxx X-0-X-0
Class LT-I-M-1 Class I-M-1 Class I-M-1
Class LT-I-M-2 Class I-M-2 Class I-M-2
Class LT-I-M-3 Class I-M-3 Class I-M-3
Class LT-I-M-4 Class I-M-4 Class I-M-4
Class LT-I-M-5 Class I-M-5 Class I-M-5
Class LT-I-M-6 Class I-M-6 Class I-M-6
Class LT-I-M-7 Class I-M-7 Class I-M-7
Class LT-I-M-8 Class I-M-8 Class I-M-8
Group I Corresponding Pooling Tier REMIC-1 Regular Interest: As
described in the Preliminary Statement.
Group I Corresponding Pooling Tier REMIC-2 IO Interest: As described
in the Preliminary Statement.
Group I Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Group I Pooling Tier REMIC-B IO Interest.
Group I Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balances of all Group I Mortgage Loans as of the Cut-off Date.
Group I Interest Rate Swap Agreement: The Group I Interest Rate Swap
Agreement, dated as of March 29, 2007, between the Group I Swap Provider and the
Trustee, a copy of which is attached hereto as Exhibit O.
Group I Lower Tier Regular Interest: Each of the Class LT-I-1-A,
Class LT-I-2-A-1, Class LT-I-2-A-2, Class LT-I-M-1, Class LT-I-M-2, Class
LT-I-M-3, Class LT-I-M-4, Class LT-I-M-5, Class LT-I-M-6, Class LT-I-M-7, Class
LT-I-M-8, Class LT-I-IO, Class LT-I-Accrual Interests, Class LT-Subgroup I-1,
Class LT-Subgroup I-1(SUB), Class LT-Subgroup I-2, Class LT-Subgroup I-2(SUB)
Interests and Class LT-I-XX as described in the Preliminary Statement.
Group I Lower Tier REMIC: As described in the Preliminary Statement.
Group I Lower Tier REMIC Interest Rate: As described in the
Preliminary Statement.
Group I Lower Tier REMIC Principal Amount: The principal balance of
each Group I Lower Tier Regular Interest, determined as set forth in the
Preliminary Statement. The Group I Lower Tier REMIC Principal Amount shall be
computed to at least eight (8) decimal places.
Group I Lower Tier REMIC Net WAC Rate: A per annum variable rate
equal to the weighted average of the Group I Pooling Tier REMIC-B Interest Rates
of the Group I Pooling Tier REMIC-B Regular Interests (other than the Group I
Pooling Tier REMIC-B IO Interests).
Group I Lower Tier REMIC Subordinated Balance Ratio: The ratio
between the Group I Lower Tier REMIC Principal Amounts of the Class LT-I
Subgroup I-1 (SUB) Interest and Class LT-I Subgroup I-2 (SUB) Interest, equal to
the ratio between the Subordinated Amount of the Subgroup I-1 Mortgage Loans and
the Subordinated Amount of the Subgroup I-2 Mortgage Loans, respectively.
Group I Lower Tier Principal Amount: As described in the Preliminary
Statement.
Group I-LT Accretion Directed Classes: As described in the
Preliminary Statement.
Group I Mortgage Loan: Each Mortgage Loan listed on the Mortgage
Loan Schedule as a Group I Mortgage Loan.
Group I Offered Certificates: As specified in the Preliminary
Statement.
Group I Optional Termination Date: The Distribution Date on which
the aggregate Stated Principal Balance of the Group I Mortgage Loans, as of the
last day of the related Due Period, is equal to 10% or less of the Group I
Cut-off Date Pool Principal Balance.
Group I Pool Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, the weighted average of (x) the Subgroup I-1 Loan Cap for
such Distribution Date (y) the Subgroup I-2 Loan Cap for such Distribution Date,
in each case weighted on the basis of the Subgroup I-1 Subordinated Amount and
the Subgroup I-2 Subordinated Amount.
Group I Pool Stated Principal Balance: As to any Distribution Date,
the aggregate of the Stated Principal Balances of the Group I Mortgage Loans for
such Distribution Date that were Outstanding Mortgage Loans on the Due Date in
the related Due Period.
Group I Pooling Tier REMIC-A: As described in the Preliminary
Statement.
Group I Pooling Tier REMIC-A Interest Rate: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-A Principal Amount: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-A Regular Interest: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-B: As described in the Preliminary
Statement.
Group I Pooling Tier REMIC-B Interest Rate: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-B IO Interest: Any of the Group I Pooling
Tier REMIC-B Regular Interests with the designation "IO" in its name.
Group I Pooling Tier REMIC-B IO Notional Balance: As described in
the Preliminary Statement.
Group I Pooling Tier REMIC-B Principal Amount: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-B Regular Interest: As described in the
Preliminary Statement.
Group I Pooling Tier REMIC-1 Loan Subgroup I-1 WAC Rate: With
respect to the Subgroup I-1 Mortgage Loans as of any Distribution Date, the
weighted average of the Adjusted Net Mortgage Rates then in effect on the
beginning of the related Due Period on the Subgroup I-1 Mortgage Loans
multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Group I Pooling Tier REMIC-1 Subgroup I-2 WAC Rate: With respect to
the Subgroup I-2 Mortgage Loans as of any Distribution Date, a per annum rate
equal to (a) the weighted average of the Adjusted Net Mortgage Rates then in
effect on the beginning of the related Due Period on the Subgroup I-2 Mortgage
Loans multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Group I Principal Certificates: As specified in the Preliminary
Statement.
Group I Principal Distribution Amount: For any Distribution Date,
the sum of (i) the Basic Principal Distribution Amount for such Distribution
Date and (ii) the Extra Principal Distribution Amount for such Distribution
Date.
Group I Principal Remittance Amount: With respect to any
Distribution Date and the Group I Mortgage Loans, the amount equal to the sum of
the following amounts (without duplication): (i) all scheduled payments of
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
Monthly Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds allocable to principal and received during the
related Prepayment Period with respect to Loan Group I; (iii) all Principal
Prepayments allocable to principal and received during the related Prepayment
Period for Loan Group I; (iv) all amounts received with respect to such
Distribution Date representing the portion of the purchase price allocable to
principal in connection with a purchase or repurchase of a Deleted Mortgage Loan
in Loan Group I; (v) principal portion of all amounts received with respect to
such Distribution Date as a Substitution Adjustment Amount and received in
connection with the substitution of a Group I Mortgage Loan; and (vi) the
allocable portion of the proceeds received with respect to the termination of
Loan Group I pursuant to clause (a) of Section 9.01 (to the extent such proceeds
relate to principal).
Group I Subordinated Certificates: As specified in the Preliminary
Statement.
Group I Subsequent Recovery: With respect to any Distribution Date
and any Group II Mortgage Loan, an amount, net of any reimbursable expenses,
received in respect of principal on that Mortgage Loan during the related
Prepayment Period that has previously been allocated as a Realized Loss to a
Class of Group II Certificates.
Group I Swap Provider: Barclays Bank PLC, a bank authorized and
regulated by the United Kingdom's Financial Services Authority and a member of
the London Stock Exchange, and its successors in interest.
Group I Termination Price: As decribed in Section 9.01(a).
Group I Trust REMIC: Any of the Group I Pooling Tier REMIC-A, the
Group I Pooling Tier REMIC-B, the Group I Lower Tier REMIC or the Group I Upper
Tier REMIC, as applicable.
Group I Upper Tier Carry Forward Amount: With respect to each Class
of Group I LIBOR Certificates, as of any Distribution Date, the sum of (A) if on
such Distribution Date the Group I Upper Tier REMIC Interest Rate for the Group
I Corresponding Class of Group I Upper Tier REMIC Regular Interest is based upon
the Group I Upper Tier REMIC Subgroup I-1 Rate, Group I Upper Tier REMIC
Subgroup I-2 Rate or Group I Upper Tier REMIC Pool Cap Rate, as applicable, the
excess, if any, of (i) the Group I Accrued Certificate Interest Distribution
Amount such Class of Group I LIBOR Certificates would otherwise be entitled to
receive on such Distribution Date taking into account the Group I WAC Cap, over
(ii) the Group I Accrued Certificate Interest Distribution Amount such Class of
Group I Upper Tier REMIC Regular Interest would otherwise be entitled to receive
on such Distribution Date taking into account the Group I Upper Tier REMIC
Subgroup I-1 Rate, Group I Upper Tier REMIC Subgroup I-2 Rate or Group I Upper
Tier REMIC Pool Cap Rate, as applicable, and (B) the Group I Upper Tier Carry
Forward Amount for such Class of Certificates for all previous Distribution
Dates not previously paid, together with interest thereon at a rate equal to the
applicable Group I Upper Tier REMIC Interest Rate for such Class of Certificates
for such Distribution Date, without giving effect to the Group I Upper Tier
REMIC Loan Group I Rate, Group I Upper Tier REMIC Loan Group II Rate or Group I
Upper Tier REMIC Pool Cap Rate, as applicable.
Group I Upper Tier REMIC: As described in the Preliminary Statement.
Group I Upper Tier REMIC Subgroup I-1 Rate: As described in the
Preliminary Statement.
Group I Upper Tier REMIC Subgroup I-2 Rate: As described in the
Preliminary Statement.
Group I Upper Tier REMIC Pool Cap Rate: For any Distribution Date,
the weighted average of the Group I Lower Tier REMIC Interest Rate on (a) the
Class LT Subgroup I-1(SUB), subject to a cap and floor equal to the Group I
Lower Tier REMIC Interest Rate of the Class LT Subgroup I-1 Interest and (b) the
Class LT Subgroup I-2(SUB), subject to a cap and floor equal to the Lower Tier
REMIC Interest Rate of the Class LT Subgroup I-2 Interest, weighted on the basis
of the respective Group I Lower Tier REMIC Principal Amounts of the Class LT
Subgroup I-1(SUB) and Class LT Subgroup I-2(SUB), respectively.
Group I Upper Tier REMIC Regular Interest: As described in the
Preliminary Statement.
Group I WAC Cap: With respect to Loan Group I as of any Distribution
Date, a per annum rate equal to: the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans minus the product of (A) the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment), made to the Group I Swap Provider from Group I Available
Funds, if any, expressed as a percentage equal to a fraction, the numerator of
which is equal to the Net Swap Payment plus any Swap Termination Payment (other
than a Defaulted Swap Termination Payment) made to the Group I Swap Provider
from Group I Available Funds and the denominator of which is equal to the
aggregate Stated Principal Balance of the Group I Mortgage Loans at the
beginning of that Due Period and (B) 12 multiplied by (ii) 30 divided by the
actual number of days in the related Interest Accrual Period.
Group II: With respect to Certificates, the Group II Certificates
and with respect to Mortgage Loans, the Group II Mortgage Loans.
Group II Accrued Certificate Interest: For each Class of
Certificates (other than the Class II-1-PO and Class II-2-PO Certificates) of
Group II for each Distribution Date will be an amount equal to (1) the interest
accrued at such class's Pass Through Rate during the related Interest Accrual
Period on the Class Certificate Balance or the Notional Amount, as applicable,
of such Class of Certificates, minus each class's pro rata share of any related
Net Interest Shortfalls, the interest portion of any Excess Losses through the
Cross-Over Date to the extent allocated to such class and, after the Cross-Over
Date, the interest portion of Realized Losses for Group II, including Excess
Losses for Group II, to the extent allocated to such Class plus (2) the portion
of any Group II Accrued Certificate Interest referred to in clause (1) above for
that Class remaining undistributed from previous Distribution Dates.
Group II Available Funds: With respect to any Distribution Date and
the Group II Mortgage Loans, to the extent received by the Trustee (x) the sum
of (i) all scheduled installments of interest (net of the related Expense Fees)
and principal due on the Due Date on such Group II Mortgage Loans in the related
Due Period and received by the related Servicer on or prior to the related
Determination Date, together with any Monthly Advances in respect thereof; (ii)
all Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and
Subsequent Recoveries received by the related Servicer on the Group II Mortgage
Loans during the related Prepayment Period (in each case, net of unreimbursed
expenses incurred in connection with a liquidation or foreclosure and
unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Group II Mortgage Loans received by the related Servicer during the related
Prepayment Period together with all Compensating Interest paid by the related
Servicer in connection therewith (excluding any Prepayment Premiums); (iv) all
Substitution Adjustment Amounts with respect to substitutions of Group II
Mortgage Loans that occur on or prior to the related Determination Date; (v) all
amounts received with respect to such Distribution Date as the Repurchase Price
in respect of a Group II Mortgage Loan repurchased on or prior to the related
Determination Date; and (vi) the proceeds received with respect to the
termination of the Loan Group II pursuant to clause (a) of Section 9.01; reduced
by (y) amounts in reimbursement for Advances previously made with respect to the
Group II Mortgage Loans and other amounts as to which the related Servicer, the
Depositor, the Custodian or the Trustee are entitled to be paid or reimbursed
pursuant to this Agreement.
Group II Certificates: As specified in the Preliminary Statement.
Group II Corresponding Class: As specified in the Preliminary
Statement.
Group II Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balances of all Group II Mortgage Loans as of the Cut-off Date.
Group II Interest Shortfall: The aggregate amount of interest that
would otherwise have been received for each Group II Mortgage Loan that was the
subject of a Relief Act Reduction.
Group II Lower Tier Regular Interest: Each as specified in the
Preliminary Statement.
Group II Lower Tier Principal Amount: As described in the
Preliminary Statement.
Group II Lower Tier REMIC: As described in the Preliminary
Statement.
Group II Lower Tier REMIC Interest Rate: As described in the
Preliminary Statement.
Group II Mortgage Loan: Each Mortgage Loan listed on the Mortgage
Loan Schedule as a Group II Mortgage Loan.
Group II Offered Certificates: As specified in the Preliminary
Statement.
Group II Pooling Tier REMIC Regular Interests: Any of the Class
PT-II-1B, Class PT-II-1Q, Class PT-II-2B, Class PT-II-2Q, Class PT-II-1-IO,
Class PT-II-2-IO, Class PT-II-1-PO and Class PT-II-2-PO Interests.
Group II Pooling Tier Subordinate Balance Ratio: The ratio between
the Group II Pooling Tier Principal Amounts of the Class PT-II-1B Interest and
Class PT-II-2B Interest equal to the ratio between the Group II Subgroup
Subordinate Amount of Subgroup II-1 and the Group II Subgroup Subordinate Amount
of Subgroup II-2.
Group II PO Deferred Amount: Any of the Subgroup II-1-PO Deferred
Amount and Subgroup II-2-PO Deferred Amount, as applicable.
Group II PO Principal Distribution Amount: For each Subgroup of
Group II and any Distribution Date, the sum of:
(1) the applicable PO Percentage of all Scheduled Payments of
principal due on each Mortgage Loan in the related Subgroup of Group II on the
related Due Date without giving effect to any Deficient Valuation or Debt
Service Reduction that occurred prior to the reduction of the Bankruptcy Loss
Coverage Amount to zero;
(2) the applicable PO Percentage of the principal portion of the
Stated Principal Balance of each Mortgage Loan in the related Subgroup of Group
II that was repurchased by the transferor or another person with respect to that
Distribution Date;
(3) the applicable PO Percentage of any Substitution Adjustment
Amounts received in respect of Mortgage Loan in the related Subgroup of Group II
and with respect to that Distribution Date;
(4) the applicable PO Percentage of the amount of net Insurance
Proceeds or net Liquidation Proceeds allocable to principal received on Mortgage
Loan in the related Subgroup of Group II in the prior calendar month with
respect to a Mortgage Loan in the related Subgroup of Group II that is not a
Liquidated Loan;
(5) with respect to each Mortgage Loan in the related Subgroup of
Group II that became a Liquidated Loan during the prior calendar month, the
lesser of:
(a) the applicable PO Percentage of the Stated Principal Balance of
that Mortgage Loan; and
(b) the applicable PO Percentage of the amount of the net Insurance
Proceeds or net Liquidation Proceeds allocable to principal received with
respect to that Mortgage Loan during the prior calendar month; and
(6) the applicable PO Percentage of:
(a) Principal Prepayments in Full received in respect of Mortgage
Loans in such Mortgage Loan Subgroup during the related Prepayment Period; and
(b) partial principal prepayments in respect of Mortgage Loans in
such Subgroup applied during the related Prepayment Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Discount Loan in such Mortgage Loans in such
Subgroup that is not a Liquidated Loan after the Bankruptcy Loss Coverage Amount
has been reduced to zero, the applicable Subgroup PO Principal Distribution
Amount will be reduced on the related Distribution Date by the applicable PO
Percentage of the principal portion of the Deficient Valuation or Debt Service
Reduction in respect of Mortgage Loans in such Subgroup.
Group II Pooling Tier REMIC: As described in the Preliminary
Statement.
Group II Pooling Tier REMIC Interest Rate: As described in the
Preliminary Statement.
Group II Pooling Tier REMIC Principal Amount: As described in the
Preliminary Statement.
Group II Pooling Tier REMIC Regular Interest: As described in the
Preliminary Statement.
Group II Pool Stated Principal Balance: As to any Distribution Date,
the aggregate of the Stated Principal Balances of the Group II Mortgage Loans
for such Distribution Date that were Outstanding Mortgage Loans on the Due Date
in the related Due Period.
Group II Purchase Price: With respect to any Group II Mortgage Loan,
purchase such Mortgage Loan at a price equal to the sum of (a) 100% of the
Stated Principal Balance of that Mortgage Loan as of the date of repurchase, (b)
interest on such Stated Principal Balance at the applicable Mortgage Interest
Rate (net of the applicable servicing fee) from the date on which interest has
last been paid through the last day of the month in which such repurchase takes
place, less (c) amounts received or advanced in respect to such repurchased
Mortgage Loan which are being held in the collection account for distribution in
the month of repurchase.
Group II Principal Certificates: As specified in the Preliminary
Statement.
Group II Senior Certificates: As specified in the Preliminary
Statement.
Group II Senior Optimal Principal Amount: With respect to each
Subgroup in Group II and any Distribution Date, the sum of:
(1) the Group II Senior Percentage related to such Subgroup of the
sum for each Mortgage Loan in such Subgroup of the applicable Non-PO Percentage
of all Scheduled Payments of principal due on each Mortgage Loan in such
Subgroup on the related Due Date without giving effect to any Deficient
Valuation or Debt Service Reduction that occurred prior to the reduction of the
Bankruptcy Loss Coverage Amount to zero;
(2) the Group II Senior Percentage related to such Subgroup of the
sum for each Mortgage Loan in such Subgroup of the applicable Non-PO Percentage
of the principal portion of the Group II Purchase Price of each Mortgage Loan in
such Subgroup that was repurchased by the applicable Original Loan Seller or
another person with respect to that Distribution Date;
(3) the Group II Senior Percentage related to such Subgroup of the
sum for each Mortgage Loan in such Subgroup of the applicable Non-PO Percentage
of any Substitution Adjustment Amounts in respect of a Mortgage Loan in such
Subgroup received with respect to that Distribution Date;
(4) the Group II Senior Percentage related to such Subgroup of the
sum for each mortgage loan in such Subgroup of the applicable Non-PO Percentage
of the amount of net Insurance Proceeds or net Liquidation Proceeds allocable to
principal received in the prior calendar month with respect to a Mortgage Loan
in such Subgroup that is not a Liquidated Loan;
(5) with respect to each Mortgage Loan in such Subgroup that became
a Liquidated Loan during the prior calendar month, the lesser of:
(a) the Group II Senior Percentage related to such Subgroup of the
applicable Non-PO Percentage of the Stated Principal Balance of that Mortgage
Loan of such Subgroup; and
(b) either (A) the Group II Senior Prepayment Percentage related to
such Subgroup or (B) if an Excess Loss was sustained with respect to any
Liquidated Loan of such Subgroup during the preceding calendar month, the Group
II Senior Percentage related to such Subgroup, of the applicable Non-PO
Percentage of the amount of the net Insurance Proceeds or net Liquidation
Proceeds allocable to principal received with respect to that Mortgage Loan
during the prior calendar month;
(6) the Group II Senior Prepayment Percentage related to such
Subgroup of the sum for each Mortgage Loan of such Subgroup of the applicable
Non-PO Percentage of:
(a) Principal Prepayments in Full in respect of a Mortgage Loan of
such Subgroup received during the related Prepayment Period; and
(b) partial principal prepayments in respect of a Mortgage Loan of
such Subgroup applied during the related Prepayment Period;
(7) with respect to any Distribution Date prior to the Cross-Over
Date only, the Group II Senior Prepayment Percentage related to such Subgroup of
the Non-PO Recoveries for such Subgroup received during the related Prepayment
Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Mortgage Loan of such Subgroup that is not a
Liquidated Loan after the Bankruptcy Loss Coverage Amount has been reduced to
zero, the Group II Senior Optimal Principal Amount for such Subgroup will be
reduced on the related Distribution Date by the Group II Senior Percentage
related to such Subgroup of the applicable Non-PO Percentage of the principal
portion of such Deficient Valuation or Debt Service Reduction.
Group II Senior Percentage: With respect to each Subgroup of Group
II and each Distribution Date, the lesser of 100% and the percentage equivalent
of a fraction, the numerator of which is the aggregate Class Certificate Balance
of all of the Senior Certificates (other than the Class PO or Interest Only
Certificates) of such Subgroup immediately prior to such Distribution Date, and
the denominator of which is the Non-PO Percentage multiplied by the aggregate
Stated Principal Balance of all Mortgage Loans in the related Subgroup for such
Distribution Date.
Group II Senior Prepayment Percentage: With respect to each Subgroup
of Group II and any Distribution Date, the percentage (not exceeding 100%) set
forth in the following table:
Distribution Date Occurring Group II Senior Prepayment Percentage
--------------------------------- -------------------------------------
April 2007 through March 2012 100%
April 2012 through March 2013 Group II Senior Percentage of such
Subgroup plus 70% of the Group II
Subordinate Percentage;
April 2013 through March 2014 Group II Senior Percentage of such
Subgroup plus 60% of the Group II
Subordinate Percentage;
April 2014 through March 2015 Group II Senior Percentage of such
Subgroup plus 40% of the Group II
Subordinate Percentage;
April 2015 through March 2016 Group II Senior Percentage of such
Subgroup plus 20% of the Group II
Subordinate Percentage; and
After March 2016 Group II Senior Percentage of such
Subgroup
provided, however, that on any of the foregoing Distribution Dates if the Group
II Senior Percentage for any Subgroup in Group II exceeds the initial Group II
Senior Percentage for such Subgroup, the Group II Senior Prepayment Percentage
for each Subgroup of Group II will once again equal 100%. The reductions in the
Group II Senior Prepayment Percentages for each Subgroup described above will
not occur, unless, as of the last day of the month preceding the Distribution
Date, both:
(i) the aggregate Stated Principal Balance of Mortgage Loans
delinquent 60 days or more (including for this purpose any of such
Mortgage Loans in bankruptcy or foreclosure and such Mortgage Loans with
respect to which the related Mortgaged Property has been acquired by the
Trust) does not exceed 50% of the aggregate Class Certificate Balances of
the Group II Subordinate Certificates as of that date; and
(ii) cumulative Realized Losses with respect to the Mortgage Loans
do not exceed:
(A) 30% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including April 2012 and March
2013;
(B) 35% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including April 2013 and March
2014;
(C) 40% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including April 2014 and March
2015;
(D) 45% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including April 2015 and March
2016; and
(E) 50% of the Original Subordinate Principal Balance if such
Distribution Date occurs after March 2016.
Upon the reduction of a Group II Senior Prepayment Percentage during
one of the periods described in the table above, such reduction will remain in
effect for the remainder of that period.
Group II Subgroup Subordinate Amount: As to any Distribution Date,
with respect to any Subgroup for Group II, the amount equal to the excess of the
aggregate Stated Principal Balance of the applicable Subgroup Mortgage Loans
(net of the PO Percentage of each Mortgage Loan in such Subgroup) over the
aggregate Class Certificate Balance of the Group II Senior Certificates (other
than the Class PO Certificates and the related Interest Only Certificates) of
the related Subgroup immediately prior to such Distribution Date.
Group II Subordinate Certificates: As specified in the Preliminary
Statement.
Group II Subordinate Certificate Writedown: The amount, if any, by
which the aggregate Class Certificate Balance of all of the Group II Offered
Certificates on any Distribution Date (after giving effect to distributions of
principal and allocation of Realized Losses for Loan Group II on that date)
exceeds the aggregate of the Stated Principal Balances of the Group II Mortgage
Loans for the following Distribution Date:
(i) the sum of the Class Certificate Balances of the Group II Senior
Certificates (other than the Interest Only Certificates and Class PO
Certificates) and the Group II Subordinate Certificates, after giving
effect to the distribution of principal and the allocation of Realized
Losses in reduction of the Class Certificate Balances of those
certificates on that Distribution Date, exceeds
(ii) the aggregate Pool Balance of the Group II Mortgage Loans as of
the following Distribution Date, less any Deficient Valuations related to
each such Subgroup of Group II occurring before the Bankruptcy Loss
Coverage Amount has been reduced to zero and less the PO Percentage of any
Discount Loan in each Subgroup of Group II.
Group II Subordinate Optimal Principal Amount: With respect to any
Subgroup of Group II and any Distribution Date in the aggregate, the sum of:
(i) the Group II Subordinate Percentage related to such Subgroup of
the sum for each Mortgage Loan in such Subgroup of the applicable Non-PO
Percentage of all Scheduled Payments of principal due on each Mortgage
Loan of such Subgroup on the related Due Date without giving effect to any
Deficient Valuation or Debt Service Reduction that occurred prior to the
reduction of the Bankruptcy Loss Coverage Amount to zero;
(ii) the Group II Subordinate Percentage related to such Subgroup of
the sum for each Mortgage Loan in such Subgroup of the applicable Non-PO
Percentage of the principal portion of the Purchase Price of each Mortgage
Loan of such Subgroup that was repurchased by the Original Loan Seller or
another Person with respect to that Distribution Date;
(iii) the Group II Subordinate Percentage related to such Subgroup
of the sum for each Mortgage Loan in such Subgroup of the applicable
Non-PO Percentage of any Substitution Adjustment Amounts in respect of a
Mortgage Loan of such Subgroup received with respect to that Distribution
Date;
(iv) the Group II Subordinate Percentage related to such Subgroup of
the sum for each Mortgage Loan of such Subgroup of the applicable Non-PO
Percentage of the amount of net Insurance Proceeds or net Liquidation
Proceeds allocable to principal received in the prior calendar month with
respect to a Mortgage Loan of such Subgroup that is not a Liquidated Loan;
(v) with respect to each Mortgage Loan of such Subgroup that became
a Liquidated Loan during the prior calendar month, the portion of the
applicable Non-PO Percentage of the amount of the net Insurance Proceeds
or net Liquidation Proceeds allocable to principal received with respect
to that Mortgage Loan during the prior calendar month that was not
included in clause (5) of the definition of "Group II Senior Optimal
Principal Amount" for such Distribution Date; and
(vi) the Group II Subordinate Prepayment Percentage related to such
Subgroup of the sum for each Mortgage Loan in such Subgroup of the
applicable Non-PO Percentage of:
(A) Principal Prepayments in Full in respect of a Mortgage
Loan of such Subgroup received during the related Prepayment Period;
and
(B) partial principal prepayments in respect of a mortgage
loan of such Subgroup applied during the related Prepayment Period;
and
(vii) with respect to any Distribution Date prior to the Cross-Over
Date only, the Group II Subordinate Prepayment Percentage related to such
Subgroup of the Non-PO Recoveries for such Subgroup received during the
related Prepayment Period;
provided, however, that if a Deficient Valuation or Debt Service Reduction is
sustained with respect to a Mortgage Loan of such Subgroup that is not a
Liquidated Loan after the Bankruptcy Loss Coverage Amount has been reduced to
zero, the Group II Subordinate Optimal Principal Amount for such Subgroup will
be reduced on the related Distribution Date by the Group II Subordinate
Percentage related to such Subgroup of the applicable Non-PO Percentage of the
principal portion of such Deficient Valuation or Debt Service Reduction.
Group II Subordinate Percentage: With respect to any Subgroup of
Group II any Distribution Date, the difference between 100% and the Group II
Senior Percentage for such Subgroup on such Distribution Date.
Group II Subordinate Prepayment Percentage: With respect to and
Subgroup of Group II and any Distribution Date, the difference between 100% and
the Group II Senior Prepayment Percentage for such Subgroup on such Distribution
Date.
Group II Subordinate Principal Distribution Amount: With respect to
Group II, the aggregate amount payable as principal on the Group II Subordinate
Certificates from Group II Available Funds for each Subgroup in Group II in
accordance with Section 4.01(b), after application of Group II Available Funds
for each such Subgroup to make payments on the Senior Certificates in such
Subgroup as described in Section 4.01(b) (including amounts required to be paid
as described in Section 4.01(b)) and giving effect to distributions of Accrued
Certificate Interest to the Group II Subordinate Certificates in accordance with
the priorities set forth in Section 4.01(b).
Group II Subsequent Recovery: With respect to any Distribution Date
and any Group II Mortgage Loan, an amount, net of any reimbursable expenses,
received in respect of principal on that Mortgage Loan during the related
Prepayment Period that has previously been allocated as a Realized Loss to a
Class of Certificates of Group II.
Group II Termination Price: As described in Section 9.01(a).
Group II Trust REMIC: Any of the Group II Pooling Tier REMIC, the
Group II Lower Tier REMIC or the Group II Upper Tier REMIC, as applicable.
Group II Upper Tier REMIC: As described in the Preliminary
Statement.
Index: As to each Group I Mortgage Loan, the index from time to time
in effect for the adjustment of the Mortgage Rate set forth as such in the
related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Distribution Date and
(1) the Group I LIBOR Certificates, the period from and including the preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) through the day before the current Distribution Date, calculated on the
basis of a 360-day year and the actual number of days elapsed in the applicable
Interest Accrual Period, and (2) with respect to the Group II Certificates
(other than the Class II-1-PO and Class II-2-PO Certificates), the calendar
month immediately preceding the month in which the related Distribution Date
occurred, calculated on the basis of a 360-day year and twelve months of 30 days
each.
Interest Only Certificates: As specified in the Preliminary
Statement.
Interest Remittance Amount: With respect to any Distribution Date
and any Subgroup of Group I Mortgage Loans, the portion of Group I Available
Funds attributable to interest received or advanced with respect to the Group I
Mortgage Loans in that Subgroup with respect to such Distribution Date net of
the fees payable to the Servicer for the Group I Mortgage Loans in that Subgroup
and any lender-paid insurance premiums with respect to the Group I Mortgage
Loans in that Subgroup for that Distribution Date, and net of any Net Swap
Payments and Swap Termination Payments, other than Defaulted Swap Termination
Payments, payable to the Group I Swap Provider from Group I Available Funds,
with respect to that Distribution Date.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one month U.S. dollar
deposits as such rate appears on Reuters Page LIBOR01 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Reuters Page
LIBOR01, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Determination Date: With respect to any LIBOR Certificates and
any Interest Accrual Period, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Prepayment Period preceding the month of such Distribution Date and as to which
the applicable Servicer has certified to the Trustee that it has received all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
Loan Group: Either of Loan Group I or Loan Group II.
Loan Group I: The Group I Mortgage Loans.
Loan Group II: The Group II Mortgage Loans.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Loss Allocation Limitation: With respect to the Group II
Certificates, the limitation on reductions of the Class Certificate Balance of
any Class on any Distribution Date on account of any Realized Loss to the extent
that the reduction would have the effect of reducing the aggregate Class
Certificate Balance of all of the certificates (other than the Interest Only
Certificates and Class PO Certificates) as of that Distribution Date to an
amount less than the Pool Balance for all of the Subgroups in Group II as of the
following Distribution Date, less (i) any Deficient Valuations applicable to
each such Subgroup in Group II occurring before the Bankruptcy Loss Coverage
Amount has been reduced to zero and less (ii) the PO Percentage of the Scheduled
Principal Balance of any Discount Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing Agreement.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Servicers, the Custodian
and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note, including all riders
thereto.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the related Sale Agreement and the related Servicing Agreement, each Mortgage
Loan originally sold and subject to the Sale Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage File, the Custodial File, the Servicing File, the Scheduled Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition proceeds, Prepayment Premiums and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee and Custodian and referred to on Schedule I, such schedule setting
forth the following information with respect to each Mortgage Loan as of the
Cut-off Date: (1) the applicable Original Loan Seller's Mortgage Loan number;
(2) the address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second home;
(5) a code indicating whether the Mortgaged Property is a single family
residence, two family residence, three-family residence, four family residence,
condominium, manufactured housing or planned unit development; (6) the purpose
of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) the name of
the applicable Servicer; (11) the Servicing Fee Rate; (12) the current Scheduled
Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the loan-to-value ratio at origination; (17) the
actual principal balance of the Mortgage Loan as of the Cut-off Date; (18)
social security number of the Mortgagor; (19) a code indicating whether the
Mortgaged Property is a leasehold estate; (20) the Due Date of the Mortgage
Loan; (21) whether the Mortgage Loan is insured by a Primary Mortgage Insurance
Policy and the name of the insurer; (22) the certificate number of the Primary
Mortgage Insurance Policy; (23) the amount of coverage of the Primary Mortgage
Insurance Policy, and if it is a lender-paid Primary Mortgage Insurance Policy,
the premium rate; (24) the type of appraisal; (25) a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; (26) documentation type (including asset
and income type); (27) first payment date; (28) the schedule of the payment
delinquencies in the prior 12 months; (29) FICO score; (30) the Mortgagor's
name; (31) the stated maturity date; (32) the original principal amount of the
mortgage; (33) the "pay through" date or the date of the last payment made; (34)
the Gross Margin of the Mortgage Loan and (35) the Loan Group and Subgroup of
such Mortgage Loan. With respect to the Mortgage Loans in each Loan Group in the
aggregate: (1) the number of Mortgage Loans in such Loan Group; (2) the current
aggregate outstanding principal balance of the Mortgage Loans in such Loan
Group; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans in
such Loan Group; and (4) the weighted average maturity of the Mortgage Loans in
such Loan Group.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the
sum of (x) the Group II Interest Shortfall and (y) any related Net Prepayment
Interest Shortfall.
Net Monthly Excess Cash Flow: For any Distribution Date, the amount
remaining for distribution pursuant to Section 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date and any
Loan Group, the amount by which the sum of the Prepayment Interest Shortfalls
for such Loan Group exceeds the Compensating Interest payments for such Loan
Group made with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the
Group I Swap Provider on the related Fixed Rate Payer Payment Date (as defined
in the Group I Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Group I Swap
Provider to the Trust on the related Floating Rate Payer Payment Date (as
defined in the Group I Interest Rate Swap Agreement), or any amount withdrawn
from the applicable reserve account referred to in the fourth full paragraph of
Section 4.07 that is required under that paragraph be treated as a Net Swap
Receipt for purposes of determining the distributions from the Supplemental
Interest Account.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class CE Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non-Discount Loans: Any of the Subgroup II-1 Non-Discount Loans or
Subgroup II-2 Non-Discount Loans.
Non-Excess Realized Loss: Any Realized Loss other than an Excess
Loss.
Non-PO Percentage: With respect to any Subgroup of Group II and:
(1) any Discount Loan of such Subgroup of Group II, the fraction,
expressed as a percentage, equal to the net Mortgage Interest Rate divided by
the Required Coupon for such Subgroup of Group II; and
(2) any Non Discount Loan of such Subgroup of Group II, 100%.
Non-PO Recoveries: With respect to Group II Subsequent Recoveries
and any Distribution Date, an amount equal to the excess, if any, of (i) the
amount of the Group II Subsequent Recoveries, over (ii) the amount of the
aggregate of the PO Recoveries for that Distribution Date.
Notional Amount: With respect to any Distribution Date means:
(1) for the Class II-1-A-9 Certificates the Class Certificate
Balance of Class II-1-A-7 and Class II-1-A-10 Certificates immediately prior to
that date multiplied by 4.1666666667%;
(2) for the Class II-1-A-14 Certificates the sum of (1) Class
Certificate Balances of Class II-1-A-1, Class II-1-A-11, Class II-1-A-12, and
Class II-1-A-13 Certificates immediately prior to that date multiplied by
8.0260489863%, (2) Class Certificate Balance of Class II-1-A-5 certificates
immediately prior to that date multiplied by 4.1666666667%, and (3) Class
Certificate Balance of Class II-1-A-8 Certificates immediately prior to that
date multiplied by 8.3333333333%;
(3) for the Class II-1-IO Certificates the aggregate Stated
Principal Balance of the Non Discount Mortgage Loans in Subgroup II-1 as of the
Due Date in the preceding calendar month (after giving effect to prepayments
received in the Prepayment Period related to such prior Due Date).
(4) for the Class II-2-IO Certificates the aggregate Stated
Principal Balance of the Non-Discount Mortgage Loans in Subgroup II-2 as of the
Due Date in the preceding calendar month (after giving effect to prepayments
received in the Prepayment Period related to such prior Due Date).
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the applicable Servicer or any successor
Servicer including the Trustee as successor servicer, will not or, in the case
of a proposed Monthly Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the applicable Servicer or any
successor Servicer including the Trustee as successor servicer, will not or, in
the case of a proposed Servicing Advance, would not, be ultimately recoverable
from related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the related Servicer or the
related Original Loan Seller, and delivered to the Trustee, as required by the
applicable Servicing Agreement or applicable Sale Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the applicable Servicer, reasonably acceptable to the
Trustee (and/or such other Persons as may be set forth herein); provided, that
any Opinion of Counsel relating to (a) qualification of any Trust REMIC or (b)
compliance with the REMIC Provisions, must be (unless otherwise stated in such
Opinion of Counsel) an opinion of counsel who (i) is in fact independent of the
applicable Servicer or the Trustee of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the applicable Servicer or the
Trustee of the Mortgage Loans or in an Affiliate of either and (iii) is not
connected with the applicable Servicer or Trustee of the Mortgage Loans as an
officer, employee, director or person performing similar functions.
Original Loan Sellers: Countrywide Home Loans, in its capacity as
seller under the Countrywide Sale Agreement and Xxxxx Fargo, in its capacity as
Seller under the Xxxxx Fargo Sale and Servicing Agreement.
Original Subordinate Principal Balance: With respect to Group II,
the aggregate of the Class Certificate Balances of the Group II Subordinate
Certificates as of the date of issuance of the Certificates.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralization Floor: An amount equal to 0.50% of the Group I
Cut-off Date Pool Principal Balance.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of Group I Regular
Certificates, the following percentages:
Class I-1-A 0.190%
Class I-2-A-1 0.210%
Class I-2-A-2 0.270%
Class I-M-1 0.500%
Class I-M-2 0.550%
Class I-M-3 0.750%
Class I-M-4 0.900%
Class I-M-5 1.000%
Class I-M-6 1.500%
Class I-M-7 1.500%
Class I-M-8 1.500%
On the first Distribution Date after the Group I Optional
Termination Date, the Pass-Through Margins for the Group I LIBOR Certificates
shall increase to the rate set forth below:
Class I-1-A 0.380%
Class I-2-A-1 0.420%
Class I-2-A-2 0.540%
Class I-M-1 0.750%
Class I-M-2 0.825%
Class I-M-3 1.125%
Class I-M-4 1.350%
Class I-M-5 1.500%
Class I-M-6 2.250%
Class I-M-7 2.250%
Class I-M-8 2.250%
Pass-Through Rate: For each Class of Certificates, the per annum
rate set forth or calculated in the manner described in the Preliminary
Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the applicable Servicer or the Trustee, or any of their
respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated P-1 by Moody's, R-1 (high)
by DBRS and A-1+ by S&P;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(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 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that are
rated, if rated by Moody's, at least "Aaa" by Moody's, at least "AAA" by
DBRS, and, at least "AAAm" or "AAAm-G" by Standard & Poor's; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Xxxxxxx Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
PO Percentage: With respect to:
(i) any Discount Loan, 100% minus the Non-PO Percentage for that
Discount Loan; and
(ii) any Non-Discount Loan, 0%.
PO Recovery: With respect to Group II Subsequent Recoveries on
Discount Loans, any Distribution Date and any class of Class PO Certificates, an
amount equal to:
(iii) with respect to the Class II-1-PO Certificates, the lesser of
(a) the PO Percentage of each Group II Subsequent Recovery on each
Discount Loan in Subgroup II-1 and (b) the Subgroup II-1-PO Deferred
Amount; and
(iv) with respect to the Class II-2-PO Certificates, the lesser of
(a) the PO Percentage of each Group II Subsequent Recovery on each
Discount Loan in Subgroup II-2 and (b) the aggregate of the Subgroup
II-2-PO Deferred Amount for that Distribution Date.
Pool Balance: With respect to any Subgroup of Group II or both
Subgroups of Group II in the aggregate, and any Distribution Date, the aggregate
Stated Principal Balance of the Mortgage Loans in the related Subgroup of Group
II in such Subgroup for such Distribution Date.
Posted Collateral Account: The separate Account created and
maintained by the Trustee pursuant to Section 4.07 in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company for the benefit of the registered holders of BCAP LLC Trust
2007-AA2 Mortgage Pass-Through Certificates, Series 2007-AA2." Funds in the
Posted Collateral Account shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement and under the Group I Interest
Rate Swap Agreement.
Prepayment Interest Shortfall: With respect to any Servicer
Remittance Date, the sum of, for each Group II Mortgage Loan that was, during
the related Prepayment Period, the subject of a Principal Prepayment that was
applied by the applicable Servicer to reduce the outstanding principal balance
of such Mortgage Loan on a date preceding the Due Date in the succeeding
Prepayment Period, an amount equal to the product of (a) the Mortgage Interest
Rate net of the applicable Servicing Fee Rate for such Mortgage Loan, (b) the
amount of the Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the
number of days commencing on the date on which such Principal Prepayment was
applied and ending on the last day of the related Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, including any Prepayment
Premium, and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Prepayment Interest Shortfall: With respect to any Servicer
Remittance Date and any Loan Group, the sum of, for each Mortgage Loan in such
Loan Group that was, during the related Prepayment Period, the subject of a
Principal Prepayment that was applied by the applicable Servicer to reduce the
outstanding principal balance of such Mortgage Loan on a date preceding the Due
Date in the succeeding Prepayment Period, an amount equal to the product of (a)
the Mortgage Interest Rate net of the applicable Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the month in which that Distribution Date occurs.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated March 28,
2007, relating to the Offered Certificates.
PTCE: Department of Labor Prohibited Transaction Class Exemption.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Either Barclays Bank PLC, a public limited company
registered in England and Wales, and its successors in interest or Xxxxxx
Funding LLC, a Delaware limited liability company, and its successors in
interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Trustee.
Realized Losses: The excess of the Scheduled Principal Balance of a
defaulted Mortgage Loan over the net Liquidation Proceeds with respect to that
Mortgage Loan that are allocated to principal.
Record Date: With respect to the Group I Certificates and any
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date, provided, however, that, for any Group I
Certificate issued in definitive form, the Record Date shall be the close of
business on the last Business Day of the month preceding the month in which such
applicable Distribution Date occurs. With respect to the Group II Certificates,
the last Business Day of the month immediately preceding the month of the
related Distribution Date.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act and any similar
state statutes.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
Relief Act Reduction: Any reduction in the Mortgage Interest Rate on
a Group II Mortgage Loan due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: 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 promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Disposition: The final sale by the applicable Servicer of any
REO Property.
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.
Replacement Group I Swap Provider Payment: As defined in Section
4.05.
Reportable Event: As defined in Section 8.14(g).
Representation Letter: The Side Letter, dated as of March 29, 2007,
by and between Barclays Bank PLC and the Depositor, a copy of which is attached
hereto as Exhibit V.
Repurchase Price: With respect to (i) any Group I Mortgage Loan, an
amount equal to the sum of (i) the unpaid principal balance of such Mortgage
Loan as of the date of repurchase, (ii) interest on such unpaid principal
balance of such Mortgage Loan at the Mortgage Rate from the last date through
which interest has been paid to the date of repurchase, (iii) all unreimbursed
Servicing Advances and (iv) all expenses incurred by the Trustee arising out of
the Trustee's enforcement of the applicable Person's repurchase obligation under
the applicable Sale Agreement or under the Representation Letter, and (ii) any
Group II Mortgage Loan, the Group II Purchase Price.
Request for Release: The Request for Release submitted by the
applicable Servicer to the Custodian, substantially in the form of Exhibit D.
Required Coupon: With respect to Subgroup II-1, 6.250% per annum,
and with respect to Subgroup II-2, 6.000% per annum.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate, or any other officer in the corporate trust department
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers who at such time shall be officers with
direct responsibility for the administration of this Agreement and also, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
Restricted Classes: As described in Section 4.02(b).
Reuters Page LIBOR01: The display page currently so designated on
the Reuters 3000 Xtra Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreements: The Countrywide Sale Agreement and the Xxxxx Fargo
Sale and Servicing Agreement.
Sarbanes Certification: As defined in Section 8.14(c).
Xxxxxxxx-Xxxxx Act: means 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).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balances of the Class I-M Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distributions of the related
Group I Principal Distribution Amount for that Distribution Date) by (y) the
aggregate Stated Principal Balance of the Group I Mortgage Loans for that
Distribution Date.
Senior Specified Enhancement Percentage: With respect to Group I and
any Determination Date, 11.60%.
Servicer Remittance Date: With respect to any Distribution Date, the
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately succeeding such 18th day) of the month in which such Distribution
Date occurs.
Servicers: Countrywide Servicing in its capacity as servicer under
the Countrywide Servicing Agreement and the related Assignment Agreement, or any
successor servicer appointed pursuant thereto, and Xxxxx Fargo in its capacity
as servicer under the Xxxxx Fargo Servicing Agreement and the related Assignment
Agreement, or any successor servicer appointed pursuant thereto.
Servicing Advances: As defined in the applicable Servicing
Agreement.
Servicing Agreements: The Countrywide Servicing Agreement and the
Xxxxx Fargo Sale and Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit P
hereto.
Servicing Fee: As defined in the applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: The "Credit File" as defined in the applicable
Servicing Agreement.
Servicing Function Participant: As defined in Section 8.13(a).
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: With respect to any Loan Group and
any Distribution Date and each Mortgage Loan in the related Loan Group with
respect to which any portion of a Scheduled Payment is, as of the last day of
the related Due Period, two months or more delinquent (as calculated in
accordance with the MBA method), each Mortgage Loan in the related Loan Group in
foreclosure, each REO Property relating to such Loan Group and each Mortgage
Loan in such Loan Group for which the Mortgagor has filed for bankruptcy.
Special Hazard Coverage Termination Date: The point in time at which
the related Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss Coverage Amount: Approximately $5,070,000 less,
on each distribution, the sum of (1) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Group II Subordinate
Certificates in the absence of the Loss Allocation Limitation and (2) the
related Adjustment Amount. As of any distribution on or after the Cross-Over
Date, the Special Hazard Loss Coverage Amount will be zero.
Special Hazard Losses: Any Realized Losses attributable to damage or
a direct physical loss suffered by a Mortgaged Property related Group II
Mortgage Loan, including any Realized Loss due to the presence or suspected
presence of hazardous wastes or substances on a Mortgaged Property, other than
any such damage or loss covered by a hazard policy or a flood insurance policy
required to be maintained in respect of the Mortgaged Property under the Xxxxx
Fargo Sale and Servicing Agreement or any loss due to normal wear and tear or
certain other causes.
Special Hazard Mortgage Loan: A Liquidated Loan as to which a
Special Hazard Loss has occurred.
Specified Subordinated Amount: With respect to Group I and each
Distribution Date (i) prior to the Stepdown Date, an amount equal to 0.65% of
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
Cut-off Date, (ii) on or after the Stepdown Date, if there is no Trigger Event
in effect, the greater of (a) 1.30% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans for the related Distribution Date (after taking into
account all principal received on the Group I Mortgage Loans that is distributed
on such Distribution Date) and (b) the Overcollateralization Floor and (iii) on
or after the Stepdown Date, if a Trigger Event is in effect, the Specified
Subordinated Amount for the prior Distribution Date. When the Class Certificate
Balance of each Class of Group I LIBOR Certificates has been reduced to zero,
the Specified Subordinated Amount will thereafter equal zero.
Sponsor: Either of (i) Barclays Bank PLC, a public limited company
registered in England and Wales and regulated by the United Kingdom's Financial
Services Authority or (ii) Xxxxxx Funding LLC, a Delaware limited liability
company.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 10.05(b) the address for notices to Standard & Poor's
shall be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group - BCAP LLC Trust 2007-AA2, or
such other address as Standard & Poor's may hereafter furnish to the Depositor,
the Servicers and the Trustee.
Startup Day: As defined in Section 2.04.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of scheduled payments of principal. For purposes
of any Distribution Date, the Stated Principal Balance of any Mortgage Loan will
give effect to any scheduled payments of principal received or advanced prior to
the related Servicer Remittance Date and any unscheduled principal payments and
other unscheduled principal collections received during the related Prepayment
Period, and the Stated Principal Balance of any Mortgage Loan that has prepaid
in full or has become a Liquidated Mortgage Loan during the related Prepayment
Period shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in April 2010 and (b) the Distribution Date immediately
following the Distribution Date on which the aggregate Class Certificate
Balances of the Class I-A Certificates have been reduced to zero and (ii) the
first Distribution Date on which the Senior Enhancement Percentage (calculated
for this purpose only after taking into account payments of principal on the
Group I Mortgage Loans applied to reduce the Stated Principal Balance of the
Group I Mortgage Loans for the applicable Distribution Date but prior to any
applications of Group I Principal Distribution Amount to the Group I
Certificates on such Distribution Date) is greater than or equal to the Group I
Senior Specified Enhancement Percentage.
Stripped Interest Rate: For each Non-Discount Loan in any Subgroup
of Group II, the excess of the net Mortgage Interest Rate for that Mortgage Loan
over the Required Coupon for such Subgroup.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by a Servicer, a Subservicer or the Trustee that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans.
Subgroup: With respect to (a) Group I, either the Certificates
related to Subgroup I-1, or Subgroup I-2 or the Group I Mortgage Loans, as the
context requires, and (b) Group II, either the Certificates related to Subgroup
II-1 or Subgroup II-2 or the Group II Mortgage Loans, as the context requires.
Subgroup I-1 Loan Cap: With respect to the Subgroup I-1 Mortgage
Loans as of any Distribution Date, a per annum rate equal to the product of (i)
the weighted average of the Adjusted Net Mortgage Rates then in effect on the
beginning of the related Due Period on the Subgroup I-1 Mortgage Loans minus the
product of (A) the Net Swap Payment plus any Swap Termination Payment (other
than a Defaulted Swap Termination Payment), if any, made to the Group I Swap
Provider from Group I Available Funds, expressed as a percentage equal to a
fraction, the numerator of which is equal to the Net Swap Payment plus any Swap
Termination Payment (other than a Defaulted Swap Termination Payment), if any,
made to the Group I Swap Provider from Group I Available Funds and the
denominator of which is equal to the aggregate Stated Principal Balance of the
Group I Mortgage Loans at the beginning of such Due Period and (B) 12 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Interest Accrual Period. With respect to
the first Due Period and the first Distribution Date, the Subgroup I-1 Loan Cap
shall be reduced by a fraction, the numerator of which is the portion of the
Closing Date Deposit Amount allocable to the Subgroup I-1 Mortgage Loans and the
denominator of which is the portion of the Cut-off Date Pool Principal Balance
relating to the Subgroup I-1 Mortgage Loans.
Subgroup I-1 Mortgage Loans: Each Mortgage Loan listed on the
Mortgage Loan Schedule as a Subgroup I-1 Mortgage Loan.
Subgroup I-1 Subordinated Amount: For any Distribution Date and for
the Subgroup I-1 Mortgage Loans, the excess of the aggregate Stated Principal
Balance of the Subgroup I-1 Mortgage Loans as of the beginning of the related
Due Period over the Class Certificate Balance of the Class I-1-A Certificates
immediately prior to such Distribution Date.
Subgroup I-2 Loan Cap: With respect to the Subgroup I-2 Mortgage
Loans as of any Distribution Date, a per annum rate equal to the product of (i)
the weighted average of the Adjusted Net Mortgage Rates then in effect on the
beginning of the related Due Period on the Subgroup I-2 Mortgage Loans minus the
product of (A) the Net Swap Payment plus any Swap Termination Payment (other
than a Defaulted Swap Termination Payment), if any, made to the Group I Swap
Provider from Group I Available Funds, expressed as a percentage equal to a
fraction, the numerator of which is equal to the Net Swap Payment plus any Swap
Termination Payment (other than a Defaulted Swap Termination Payment), if any,
made to the Group I Swap Provider from Group I Available Funds and the
denominator of which is equal to the aggregate Stated Principal Balance of the
Group I Mortgage Loans at the beginning of such Due Period and (B) 12 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Interest Accrual Period. With respect to
the first Due Period and the first Distribution Date, the Subgroup I-2 Loan Cap
shall be reduced by a fraction, the numerator of which is the portion of the
Closing Date Deposit Amount allocable to the Subgroup I-2 Mortgage Loans and the
denominator of which is the portion of the Cut-off Date Pool Principal Balance
relating to the Subgroup I-2 Mortgage Loans.
Subgroup I-2 Mortgage Loans: Each Mortgage Loan listed on the
Mortgage Loan Schedule as a Subgroup I-2 Mortgage Loan.
Subgroup I-2 Subordinated Amount: For any Distribution Date and for
the Subgroup I-2 Mortgage Loans, the excess of the aggregate Stated Principal
Balance of the Subgroup I-2 Mortgage Loans as of the beginning of the related
Due Period over the aggregate Class Certificate Balance of the Class I-2-A
Certificates immediately prior to such Distribution Date.
Subgroup II-1 Certificates: As defined in the Preliminary Statement.
Subgroup II-1-PO Deferred Amount: With respect to Subgroup II-1 and
any Distribution Date on or prior to the Cross-Over Date, the sum of (1) the
applicable PO Percentage of the principal portion of Non-Excess Realized Losses
on each Subgroup II-1 Discount Loan allocated to the Class II-1-PO Certificates
on that date and (2) all amounts previously allocated to the Class II-1-PO
Certificates in respect of those losses and not distributed to the Class II-1-PO
Certificates on prior Distribution Dates.
Subgroup II-1 Discount Loan: Any Subgroup II-1 Mortgage Loan having
a net Mortgage Interest Rate as of the Cut-Off Date less than the Required
Coupon for Subgroup II-1 Mortgage Loan.
Subgroup II-1 Mortgage Loans: Each Mortgage Loan listed on the
Mortgage Loan Schedule as a Subgroup II-1 Mortgage Loan.
Subgroup II-1 Non-Discount Loan: Any Mortgage Loan in Subgroup II-1
Loan having a net Mortgage Interest Rate as of the Cut-Off Date equal to or in
excess of the Required Coupon for Subgroup II-1.
Subgroup II-1 Priority Percentage: With respect to any Distribution
Date, the percentage obtained by dividing:
(i) the Class Certificate Balance of the Class II-1-A-7 and Class
II-1-A-10 Certificates immediately preceding such Distribution Date by
(ii) the aggregate Class Certificate Balance of the Senior
Certificates of Subgroup II-1 Certificates (excluding the Class II-1-A-9,
Class II-1-A-14, Class II-1-IO and Class II-1-PO Certificates) immediately
preceding such Distribution Date.
Subgroup II-1 Priority Prepayment Distribution Percentage: With
respect to any Distribution Date, the Subgroup II-1 Priority Percentage
multiplied by the Subgroup II-1 Priority Stepdown Percentage for such
Distribution Date.
Subgroup II-1 Priority Principal Distribution Amount: For any
Distribution Date beginning in April 2012, the lesser of:
(a) 100% of the Group II Senior Optimal Principal Amount for
Subgroup II-1; and
(b) the sum of:
(i) the aggregate of the Subgroup II-1 Priority Scheduled
Distribution Percentage multiplied by each of the amounts referred
to in clauses (1) through (5) of the definition "Group II Senior
Optimal Principal Amount" related to the Subgroup II-1 Certificates;
(ii) the aggregate of the Subgroup II-1 Priority Prepayment
Distribution Percentage multiplied by each of the amounts referred
to in clauses (6) and (7) of the definition "Group II Senior Optimal
Principal Amount" related to the Subgroup II-1 Certificates; and
(iii) the Class Certificate Balances of the II-1-A-7 and II-1-A-10
Certificates;
provided, however, that if a Deficient Valuation or Debt Service Reduction that
is an Excess Loss is sustained with respect to a Mortgage Loan in Subgroup II-1
that is not a Liquidated Loan, the Subgroup II-1 Priority Principal Distribution
Amount will be reduced on the related Distribution Date by the Subgroup II-1
Priority Scheduled Distribution Percentage multiplied by the Subgroup II-1
Senior Percentage relating to the Subgroup II-1 Certificates multiplied by the
applicable Non-PO Percentage relating to the Mortgage Loans in Subgroup II-1 of
the principal portion of the Deficient Valuation or Debt Service Reduction.
Subgroup II-1 Priority Scheduled Distribution Percentage: With
respect to:
(i) any Distribution Date prior to the Distribution Date in
April 2012, 0%; and
(ii) any Distribution Date on or after the Distribution Date
in April 2012, the Subgroup II-1 Priority Percentage for that
Distribution Date.
Subgroup II-1 Priority Stepdown Percentage: With respect to any
Distribution Date, the percentage indicated below:
Distribution Date Occurring %
---------------------------------- ----------
April 2007 through March 2012..... 0%
April 2012 through March 2013..... 30%
April 2013 through March 2014..... 40%
April 2014 through March 2015..... 60%
April 2015 through March 2016..... 80%
After March 2016........ 100%
Subgroup II-2 Certificates: The Class II-2-A-1 and Class II-AR
Certificates.
Subgroup II-2 Discount Loan: Any Mortgage Loan in Subgroup II-2
having a net Mortgage Interest Rate as of the Cut-Off Date less than the
Required Coupon for Subgroup II-2.
Subgroup II-2 Mortgage Loans: Each Mortgage Loan listed on the
Mortgage Loan Schedule as a Subgroup II-2 Mortgage Loan.
Subgroup II-2 Non-Discount Loan: Any Subgroup II-2 Mortgage Loan
having a net Mortgage Interest Rate as of the Cut-Off Date equal to or in excess
of the Required Coupon for Subgroup II-2.
Subgroup II-2-PO Deferred Amount: With respect to Subgroup II-2 and
any Distribution Date on or prior to the Cross-Over Date, the sum of (1) the
applicable PO Percentage of the principal portion of Non-Excess Realized Losses
on each Subgroup II-2 Discount Loan allocated to the Class II-2-PO Certificates
on that date and (2) all amounts previously allocated to the Class II-2-PO
Certificates in respect of those losses and not distributed to the Class II-2-PO
Certificates on prior Distribution Dates.
Subordinated Amount: With respect to Group I and any Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date over (b) the Class Certificate
Balances of the Group I Principal Certificates as of such Distribution Date
(after giving effect to the payment of the Group I Principal Remittance Amount
on such Certificates on that Distribution Date).
Subordination Deficiency: With respect to Group I and any
Distribution Date, the excess, if any, of (a) the Specified Subordinated Amount
applicable to such Distribution Date over (b) the Subordinated Amount applicable
to such Distribution Date.
Subordination Reduction Amount: With respect to Group I and any
Distribution Date, an amount equal to the lesser of (a) the Excess Subordinated
Amount and (b) the Net Monthly Excess Cash Flow.
Subsequent Recovery: As Group I Subsequent Recovery or a Group II
Subsequent Recovery, as applicable.
Subservicer: Any Person that services Mortgage Loans on behalf of
the applicable Servicer or any Subservicer and is responsible for the
performance (whether directly or through Subservicers or Subcontractors) of a
substantial portion of the material servicing functions required to be performed
by the applicable Servicer under this Agreement, with respect to some or all of
the Mortgage Loans, that are identified in Item 1122(d) of Regulation AB.
Substitution Adjustment Amount: With respect to any Sale Agreement
or with respect to a Mortgage Loan substituted by the related Purchaser, an
amount of cash received from the applicable Original Loan Seller in connection
with a substitution for a Deleted Mortgage Loan.
Supplemental Interest Account: The separate account created pursuant
to Section 4.07 of this Agreement consisting of the Group I Interest Rate Swap
Agreement, the Class I-IO Interest and the right to receive Class I-IO
Shortfalls, subject to the obligation to pay amounts specified in Section 4.07.
The Account is created and maintained by the Trustee for the benefit of the
Certificateholders and designated "Deutsche Bank National Trust Company in the
name of registered holders of BCAP LLC Trust 2007-AA2 Mortgage Pass-Through
Certificates, Series 2007-AA2."
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the Group
I Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the Group I LIBOR
Certificates divided by (b) 30.
Swap Termination Payment: Any payment payable by the Trust or the
Group I Swap Provider upon termination of the Group I Interest Rate Swap
Agreement as a result of an Event of Default (as defined in the Group I Interest
Rate Swap Agreement) or a Termination Event (as defined in the Group I Interest
Rate Swap Agreement).
Tax Matters Person: The Holder of the Class I-R Certificate is
designated as "tax matters person" of the Group I Pooling Tier REMIC-A, the
Group I Pooling Tier REMIC-B, the Group I Lower Tier REMIC and the Group I Upper
Tier REMIC, in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The Holder of the
Class II-AR Certificate is designated as "tax matters person" of the Group II
Pooling Tier REMIC, the Group II Lower Tier REMIC and the Group II Upper Tier
REMIC in the manner provided under Treasury Regulations Section 1.860F-4(d) and
Treasury Regulations Section 301.6231(a)(7)-1.
10-K Filing Deadline: As defined in Section 8.14(c).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to Loan Group I and any Distribution
Date, an amount equal to the excess if any, of (i) the interest collected (prior
to the Servicer Remittance Date) or advanced on the Group I Mortgage Loans for
Due Dates during the related Due Period (net of Expense Fees) over (ii) the sum
of (A) the interest payable to the Group I Principal Certificates on such
Distribution Date pursuant to Section 4.01(a)(i), (B) any Net Swap Payments
payable to the Group I Swap Provider and (C) any Swap Termination Payment (other
than a Defaulted Swap Termination Payment) payable to the Group I Swap Provider
from Group I Available Funds.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to Group I, either a Cumulative Loss
Trigger Event or a Delinquency Trigger Event.
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, Supplemental Interest Account, Collection Accounts,
Posted Collateral Account and the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement; (iii)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; (iv) the rights of the Depositor under
the Group I Interest Rate Swap Agreement; (v) the rights of the Trust under the
Assignment Agreements, the Countrywide Servicing Agreement, the Xxxxx Fargo
Servicing Agreement, the Countrywide Sale Agreement and the Xxxxx Fargo Sale and
Servicing Agreement; (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing; and (vii) the Representation Letter.
Trust REMIC: Any Group I Trust REMIC or Group II Trust REMIC, as
applicable.
Trustee: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Trustee Float Period: With respect to any Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Servicer Remittance Date and ending on such Distribution Date.
Undercollateralized Subgroup: With respect to one or more Subgroups
of Group II, each particular Subgroup of Group II on any Distribution Date for
which the Class Certificate Balances of the Group II Senior Certificates (other
than the related Class PO Certificates) of such Subgroup of Group II (after
giving effect to distributions to be made on such Distribution Date) is greater
than the Pool Balance of the related Subgroup of Group II (net of the PO
Percentage of any Discount Loans in such Subgroup of Group II) as of the
following Distribution Date.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14979, or
any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Group I Certificates, the sum of (a) the portion of the Group I Accrued
Certificate Interest Distribution Amount from prior Distribution Dates remaining
unpaid immediately prior to the current Distribution Date and (b) interest on
the amount in clause (a) above at the applicable Pass-Through Rate (to the
extent permitted by applicable law).
Unpaid Realized Loss Amount: With respect to any Class of Group I
Certificates and as to any Distribution Date, is the excess of (i) the Applied
Realized Loss Amounts with respect to such Class over (ii) the sum of (a) all
distributions in reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates, and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Certificates in respect of any Unpaid Realized Loss Amount will not be
applied to reduce the Class Certificate Balance of such Class.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates relating to such Loan Group which is allocated to any Certificate
in such Loan Group. As of any Determination Date and with respect to the Group I
Certificates, (a) 1% of all Voting Rights shall be allocated to the Class I-CE
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests) and (b) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Group I Certificates in proportion to the Class
Certificate Balances of their respective Certificates on such date. As of any
Determination Date and with respect to the Group II Certificates, (a) 1% of all
Voting Rights shall be allocated to each Class of Interest Only Certificates, if
any (such Voting Rights to be allocated among the holders of Certificates of
each such Class in accordance with their respective Percentage Interests), and
(b) the remaining Voting Rights shall be allocated among Holders of the
remaining Classes of Group II Certificates in proportion to the Class
Certificate Balances of their respective Certificates on such date.
Xxxxx Fargo: Xxxxx Fargo Bank, National Association, a national
banking association, and its successors in interest.
Xxxxx Fargo Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of the Closing Date, among Xxxxx Fargo Bank,
N.A., the Trustee and the Depositor, relating to the Group II Mortgage Loans, a
copy of which is attached hereto as Exhibit N-1.
Xxxxx Fargo Sale and Servicing Agreement: The Seller's Warranties
and Servicing Agreement, dated as of February 1, 2007, by and between the
Depositor and Xxxxx Fargo, a copy of which is attached hereto as Exhibit L-1.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian for
the benefit of the Certificateholders the following documents or instruments
with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(iii) the related original Mortgage and evidence of its recording
or, in certain limited circumstances, a certified copy of the mortgage
with evidence of recording;
(iv) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case
evidencing recording; provided, that the assignment may be in the form of
a blanket assignment or assignments, a copy of which with evidence of
recording shall be acceptable;
(v) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(vi) an original or copy of a title insurance policy or evidence of
title;
(vii) to the extent applicable, an original power of attorney; and
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
The Depositor shall deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, each
Original Loan Seller may forward to the Custodian additional original documents,
additional documents evidencing an assumption, modification, consolidation or
extension of a Mortgage Loan, in accordance with the terms of such Sale
Agreement. All such mortgage documents held by the Custodian as to each Mortgage
Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each applicable Mortgage Loan. On the Closing Date, the Original Loan Seller
will submit the Assignments of Mortgage for recordation, at such Original Loan
Seller's expense, pursuant to the applicable Sale Agreement.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
related Sale Agreement, the Trustee, upon written notice from the Custodian of
such failure, shall take or cause to be taken such remedial actions under such
Sale Agreement against the related Original Loan Seller as may be permitted to
be taken thereunder, including, without limitation, if applicable, the
repurchase by such Original Loan Seller of such Mortgage Loan. The foregoing
repurchase remedy shall not apply in the event that an Original Loan Seller
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due to a
delay caused by the recording office in the applicable jurisdiction; provided,
that such Original Loan Seller shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer's
certificate of an officer of such Original Loan Seller, confirming that such
document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the related Original Loan Seller shall be deemed to have been satisfied upon
delivery by such Original Loan Seller to the Custodian prior to the Closing Date
of a copy of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "BCAP LLC Trust 2007-AA2"
and Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans and the Group I Interest Rate
Swap Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust
is hereby authorized to enter into the Group I Interest Rate Swap Agreement.
(e) The Trustee shall enforce the rights of the Trust under the
Representation Letter.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian shall acknowledge on the Closing Date receipt by the Custodian of the
documents identified in the Initial Certification in the form annexed hereto as
Exhibit E, and declares that it holds and will hold such documents and the other
documents delivered to it pursuant to Section 2.01, and that it holds or will
hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian acknowledges that it will maintain possession of the related Mortgage
Notes in California, Minnesota or Utah.
Prior to and as a condition to the Closing Date, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Trustee an Initial Certification, or as the Depositor agrees
to, on the Closing Date, certifying receipt of a Mortgage Note and Assignment of
Mortgage for each Mortgage Loan. The Custodian shall not be responsible to
verify the validity, sufficiency or genuineness of any document in any Custodial
File.
The Custodian shall deliver to the Trustee, the Depositor, the
Servicers and the Original Loan Sellers a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, within 90 days after the
Closing Date to the effect that, as to each applicable Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be delivered
to it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items (1), (2), (8), (32) and (34) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement.
The Custodian shall retain possession and custody of each applicable
Custodial File in accordance with and subject to the terms and conditions set
forth herein. The applicable Servicer shall promptly deliver to the Custodian,
upon the execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of such
Servicer from time to time.
The Trustee shall enforce the obligation of each Original Loan
Seller to cure or repurchase Mortgage Loans that do not conform to the
requirements of Sections 2.01 and 2.02 as determined in the Custodian's review
as required herein by notifying the applicable Original Loan Seller to correct
or cure such default. If the applicable Original Loan Seller fails or is unable
to correct or cure the defect or breach within the period set forth in the
applicable agreement, the Trustee shall notify the Depositor of such failure to
correct or cure. Unless otherwise directed by the Depositor within five (5)
Business Days after notifying the Depositor of such failure by the applicable
party to correct or cure, the Trustee, upon receipt of written notice from the
Custodian, shall notify the Depositor and the Depositor will cause the
applicable Original Loan Seller to repurchase the Mortgage Loan. The Trustee
shall enforce the obligation of each Original Loan Seller under the related Sale
Agreement to cure or repurchase Mortgage Loans for which there is a defect or a
breach of a representation or warranty thereunder of which a Responsible Officer
of the Trustee has received written notice, by notifying the applicable party to
correct or cure such default. If, within ten (10) Business Days of receipt of
such notice by such party, such party fails to repurchase such Mortgage Loan,
the Trustee shall notify the Depositor of such failure. The Trustee shall pursue
all legal remedies available to the Trustee, on behalf of the Trust, against the
applicable Servicer, the applicable Original Loan Seller and the related
Purchaser, as applicable, under this Agreement, the applicable Sale Agreement or
the applicable Servicing Agreement, as the case may be, if the Trustee has
received written notice from the Depositor directing the Trustee to pursue such
remedies. The Trustee will be reimbursed by the Trust for all costs and expenses
incurred by it in enforcing such legal remedies.
In the event that a Mortgage Loan shall have been repurchased
pursuant to a Sale Agreement or the Representation Letter, a Request for Release
in the form of Exhibit D hereto, shall be delivered to the Custodian and the
Custodian shall release within two Business Days the related Custodial File held
for the benefit of the Certificateholders to such Person as directed by the
applicable Servicer or the Depositor.
Upon the payment in full of any Mortgage Loan, or upon the receipt
by the applicable Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the applicable Servicer will
notify the Trustee and the Custodian in the manner specified in the related
Servicing Agreement and shall request delivery to it of the Custodial File by
submitting a Request for Release, which Request for Release may be in an
electronic format in a form acceptable to the Custodian. Upon receipt of such
certification and Request for Release, the Custodian shall promptly release the
related Custodial File to the applicable Servicer within two (2) Business Days.
From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Custodian shall, upon
request of the related Servicer and delivery to the Custodian of a Request for
Release in the manner specified in the related Servicing Agreement which Request
for Release may be in an electronic format in a form acceptable to the
Custodian, release the related Custodial File to the applicable Servicer within
three (3) Business Days from the receipt of the applicable Request for Release,
and the Trustee shall, at the direction of such Servicer (which may be by a
Request for Release), execute such documents as shall be necessary to the
prosecution of any such proceedings.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Trustee has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
Denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" of each Trust REMIC for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" of the regular
interests in each Group I Trust REMIC is the Distribution Date occurring in May
2047, which is the Distribution Date in the month following the month in which
the latest maturity date of any Group I Mortgage Loan occurs. The "latest
possible maturity date" of the regular interests in each Group II Trust REMIC is
the Distribution Date occurring in April 2037, which is the Distribution Date in
the month following the month in which the latest maturity date of any Group II
Mortgage Loan occurs.
Amounts distributable to the Class I-CE Certificates (prior to any
reduction for any Basis Risk Payment, Net Swap Payment or Swap Termination
Payment), exclusive of any amounts received from the Group I Swap Provider,
shall be deemed paid from the Group I Upper Tier REMIC in respect of the Class
I-CE Interest and the Class I-IO Interest to the Holders of the Class I-CE
Certificates prior to distribution of any Basis Risk Payments to the Group I
LIBOR Certificates or Swap Termination Payment to the Group I Swap Provider.
For federal income tax purposes, any amount distributed on the Group
I LIBOR Certificates on any Distribution Date in excess of the amount
distributable on their Group I Corresponding Class of Group I Upper Tier Regular
Interest on such Distribution Date shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Account, as applicable,
and any amount distributable on such Group I Corresponding Class of Group I
Upper Tier Regular Interest on such Distribution Date in excess of the amount
distributable on the Group I Corresponding Class of Group I LIBOR Certificates
on such Distribution Date shall be treated as having been paid to the
Supplemental Interest Account as a Class I-IO Shortfall, all pursuant to and as
further provided in Section 8.15.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Custodian and the
Trustee that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Trustee on behalf of the Certificateholders.
Section 2.06 Representations and Warranties of the Custodian.
The Custodian hereby represents and warrants to the Depositor and
the Trustee, as of the Closing Date:
(a) The Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under this Agreement in accordance with the terms
thereof.
(b) The Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of the Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of the Custodian, enforceable against the Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by the Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of the Custodian and will not result in a
material breach of any term or provision of the articles of association or
bylaws of the Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account.
(a) The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class I-CE Certificateholders, to receive any Basis Risk Payment
and to secure their limited recourse obligation to pay to the Group I LIBOR
Certificateholders any Basis Risk Carry Forward Amounts (prior to using any Net
Swap Receipts). For the avoidance of doubt, any Basis Risk Carry Forward Amounts
shall be paid to the Group I Principal Certificates first from the Excess
Reserve Fund Account and then from the Supplemental Interest Account. On each
Distribution Date, the Trustee shall deposit the amount of any Basis Risk
Payment received by it for such date into the Excess Reserve Fund Account. The
Excess Reserve Fund Account shall be a non-interest bearing account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Group I Principal Certificates, the
Trustee shall (1) withdraw from the Distribution Account, to the extent of funds
available therefor in the Distribution Account, and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.01(a)(iii)(D), the lesser of (x)
the Class I-CE Distributable Amount (without regard to the reduction in clause
(iii) of the definition thereof with respect to Basis Risk Carry Forward Amount
or any Defaulted Swap Termination Payment) (to the extent remaining after the
distributions specified in Sections 4.01(a)(iii)(A)-(C)) and (y) the aggregate
Basis Risk Carry Forward Amounts of the Group I Principal Certificates for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Group I Principal Certificates the
related Basis Risk Carry Forward Amount. Such payments shall be allocated to
those Classes based upon the amount of Basis Risk Carry Forward Amount owed to
each such Class and shall be paid in the priority set forth in Section
4.01(a)(iii)(E).
The Trustee shall account for the Excess Reserve Fund Account as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class I-CE
Certificateholders. For all federal income tax purposes, amounts transferred by
the Group I Upper Tier REMIC to the Excess Reserve Fund Account shall be treated
as distributions by the Trustee to the Class I-CE Certificateholders in respect
of the Class I-CE Interest and then contributed by the Class I-CE
Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the Group I Principal Certificateholders from the Excess Reserve Fund Account
shall be accounted for by the Trustee, for federal income tax purposes, as
amounts paid first to the Holders of the Class I-CE Certificates (in respect of
the Class I-CE Interest or the Class I-IO Interest, respectively) and then to
the respective Class or Classes of Group I Principal Certificates. In addition,
the Trustee shall account for the Group I Principal Certificateholders' rights
to receive payments of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account (along with payments of Basis Risk Carry Forward Amounts and,
without duplication, Group I Upper Tier Carry Forward Amounts from the
Supplemental Interest Account) and obligation to pay Class I-IO Shortfalls to
the Supplemental Interest Account as rights and obligations in a limited
recourse notional principal contract between the Class I-CE Certificateholders
and the Holders of each such Class. Funds in the Excess Reserve Fund Account
shall remain uninvested.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any distributions from the Excess Reserve
Fund Account except as expressly set forth in this Section 3.01(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders, which shall be a non-interest
bearing trust account. The Trustee shall, promptly upon receipt on the Business
Day received, deposit in the Distribution Account and retain therein the
following:
(i) the aggregate amount remitted by the applicable Servicer to the
Trustee pursuant to the applicable Servicing Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the applicable Servicer shall remit any amount not
required to be remitted pursuant to the applicable Servicing Agreement, and the
applicable Servicer pursuant to an Officer's Certificate directs the Trustee in
writing to withdraw such amount from the Distribution Account, the Trustee shall
return such funds to the applicable Servicer. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.01. In no event shall the Trustee incur
liability for withdrawals from the Distribution Account at the direction of a
Servicer.
The Trustee may invest the funds in the Distribution Account in one
or more Permitted Investments in accordance with Section 3.02. The Trustee may
withdraw from the Distribution Account any income or gain earned from the
investment of funds deposited therein during the Trustee Float Period for its
own benefit.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Trustee may (but shall not be obligated to) invest funds in the Distribution
Account during the Trustee Float Period (for purposes of this Section 3.02, such
Account is referred to as an "Investment Account"), in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand or maturing on such Distribution Date, in the case of an investment
that is an obligation of the Trustee, no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be held
to maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee. The Trustee shall be entitled
to sole possession over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee during the Trustee
Float Period shall be subject to the Trustee's withdrawal in the manner set
forth in Section 8.06.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings. Notwithstanding the foregoing, the Trustee shall be
liable to the Trust for any such loss on any funds it has invested under this
Section 3.02 only during the Trustee Float Period, and the Trustee shall deposit
funds in the amount of such loss in the Distribution Account promptly after such
loss is incurred.
(d) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation is not payable or reimbursable under Section 8.06
of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001 and other laws, rules and regulations applicable to banking institutions,
including those related to the funding of terrorist activities and money
laundering, the Trustee is required to obtain, verify and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such party's complete
name, address, tax identification number and such other identifying information
together with copies of such party's constituting documentation, securities
disclosure documentation and such other identifying documentation as may be
available for such party.
(f) On or prior to each Distribution Date, the Custodian shall
deliver an invoice to the Trustee (which may be provided electronically),
setting forth the amount of the Custodian Fee for the related Distribution Date.
The Trustee shall remit the Custodian Fee to the Custodian payable out of the
compensation payable hereunder to the Trustee.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) Distributions on Group
I Certificates. On each Distribution Date, the Trustee will make the
disbursements and transfers from amounts then on deposit in the Distribution
Account in the following order of priority and to the extent of the Group I
Available Funds remaining and, on such Distribution Date, shall make
distributions on the Group I Certificates in accordance with such allocation:
(i) holders of each Class of Group I Principal Certificates and to
the Supplemental Interest Account in the following order of priority:
(A) from the Interest Remittance Amount, to the Supplemental
Interest Account, the sum of (x) all Net Swap Payments and (y) any
Swap Termination Payment owed to the Group I Swap Provider (to the
extent not previously received by the Group I Swap Provider as a
Replacement Group I Swap Provider Payment) other than a Defaulted
Swap Termination Payment, with respect to such Distribution Date;
(B) from any remaining Interest Remittance Amount, with
respect to the Subgroup I-1 Mortgage Loans, first to the Class I-1-A
Certificates and second, pro rata (based on amounts distributable
under clause (i)(C) below) to the Class I-2-A Certificates to the
extent unpaid in clause (i)(C) below, the Group I Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts for those Classes of Certificates, as applicable;
(C) from any remaining Interest Remittance Amount, with
respect to the Subgroup I-2 Mortgage Loans, first, pro rata (based
on amounts distributable under this clause (i)(C)) to the Class
I-2-A Certificates and second, to the Class I-1-A Certificates to
the extent unpaid in clause (i)(B) above, the Group I Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts for those Classes of Certificates, as applicable;
(D) from any remaining Interest Remittance Amount, to the
Class I-M-1 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amount, to the
Class I-M-2 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amount, to the
Class I-M-3 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amount, to the
Class I-M-4 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(H) from any remaining Interest Remittance Amount, to the
Class I-M-5 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(I) from any remaining Interest Remittance Amount, to the
Class I-M-6 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(J) from any remaining Interest Remittance Amount, to the
Class I-M-7 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(K) from any remaining Interest Remittance Amount, to the
Class I-M-8 Certificates, the Group I Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (1) prior to the Stepdown Date or
(2) with respect to which a Trigger Event is in effect, to the
Supplemental Interest Account and to the Holders of the related Class or
Classes of Group I LIBOR Certificates then entitled to distributions of
principal, from Group I Available Funds remaining after making
distributions pursuant to clause (i) above, an amount equal to the Group I
Principal Distribution Amount in the following order of priority:
(1) to the extent unpaid after the distributions pursuant to
clause (i)(A) above, to the Supplemental Interest Account, the sum
of (x) all Net Swap Payments and (y) any Swap Termination Payment
(to the extent not previously received by the Group I Swap Provider
as a Replacement Group I Swap Provider Payment), other than a
Defaulted Swap Termination Payment, owed to the Group I Swap
Provider, if any;
(2) to the Class I-A Certificates, allocated as described in
Section 4.02(c), until the respective Class Certificate Balances
thereof are reduced to zero; and
(3) sequentially to the Class I-M-1, Class I-M-2, Class I-M-3,
Class I-M-4, Class I-M-5, Class I-M-6, Class I-M-7 and Class I-M-8
Certificates, in that order, until the respective Class Certificate
Balances are reduced to zero;
(B) on each Distribution Date (1) on and after the Stepdown Date and
(2) as long as a Trigger Event is not in effect, to the Supplemental
Interest Account and to the Holders of the related Class or Classes of
Group I LIBOR Certificates then entitled to distribution of principal,
from Group I Available Funds remaining on deposit in the Distribution
Account after making distributions pursuant to clause (i) above, an amount
equal to the Group I Principal Distribution Amount in the following
amounts and order of priority:
(1) to the extent unpaid after the distributions pursuant to
clause (i)(A) above, to the Supplemental Interest Account, the sum
of (x) all Net Swap Payments and (y) any Swap Termination Payment
(to the extent not previously received by the Group I Swap Provider
as a Replacement Group I Swap Provider Payment), other than a
Defaulted Swap Termination Payment, owed to the Group I Swap
Provider, if any;
(2) to the Class I-A Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and (y) the Class I-A Principal Distribution
Amount, allocated as described in Section 4.02(c), until their
respective Class Certificate Balances are reduced to zero;
(3) to the Class I-M-1 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above and (y) the Class
I-M-1 Principal Distribution Amount until their Class Certificate
Balance has been reduced to zero;
(4) to the Class I-M-2 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above and to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above and (y) the Class
I-M-2 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(5) to the Class I-M-3 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above and to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above and (y) the Class
I-M-3 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(6) to the Class I-M-4 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above, to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above and to the Class I-M-3
Certificateholders in clause (ii)(B)(5) above and (y) the Class
I-M-4 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(7) to the Class I-M-5 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above, to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above, to the Class I-M-3
Certificateholders in clause (ii)(B)(5) above and to the Class I-M-4
Certificateholders in clause (ii)(B)(6) above and (y) the Class
I-M-5 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(8) to the Class I-M-6 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above, to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above, to the Class I-M-3
Certificateholders in clause (ii)(B)(5) above, to the Class I-M-4
Certificateholders in clause (ii)(B)(6) above and to the Class I-M-5
Certificateholders in clause (ii)(B)(7) above and (y) the Class
I-M-6 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(9) to the Class I-M-7 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above, to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above, to the Class I-M-3
Certificateholders in clause (ii)(B)(5) above, to the Class I-M-4
Certificateholders in clause (ii)(B)(6) above, to the Class I-M-5
Certificateholders in clause (ii)(B)(7) and to the Class I-M-6
Certificateholders in clause (ii)(B)(8) above and (y) the Class
I-M-7 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero; and
(10) to the Class I-M-8 Certificates, the lesser of (x) the
excess of (i) the Group I Principal Distribution Amount over (ii)
the amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the Class I-A
Certificateholders in clause (ii)(B)(2) above, to the Class I-M-1
Certificateholders in clause (ii)(B)(3) above, to the Class I-M-2
Certificateholders in clause (ii)(B)(4) above, to the Class I-M-3
Certificateholders in clause (ii)(B)(5) above, to the Class I-M-4
Certificateholders in clause (ii)(B)(6) above, to the Class I-M-5
Certificateholders in clause (ii)(B)(7), to the Class I-M-6
Certificateholders in clause (ii)(B)(8) above and to the Class I-M-7
Certificateholders in clause (ii)(B)(9) above and (y) the Class
I-M-8 Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, amounts on deposit
in the Excess Reserve Fund Account, shall be distributed in the following
order of priority:
(A) sequentially, to the Holders of the Class I-M-1, Class
I-M-2, Class I-M-3, Class I-M-4, Class I-M-5, Class I-M-6, Class
I-M-7 and Class I-M-8 Certificates, in that order, any Unpaid
Interest Amount for each such Class;
(B) to the Holders of the Class I-A Certificates as follows:
(a) to the Holders of the Class I-1-A and Class
I-2-A Certificates, on a pro rata basis, any Unpaid Realized
Loss Amount in proportion to such amounts for each such Class;
and
(b) among the Class I-2-A Certificates, first to
the Class I-2-A-1 Certificates and then to the Class I-2-A-2
Certificates, any Group I Unpaid Realized Loss Amount for such
Class;
(C) sequentially, to the Holders of the Class I-M-1, Class
I-M-2, Class I-M-3, Class I-M-4, Class I-M-5, Class I-M-6, Class
I-M-7 and Class I-M-8 Certificates, in that order, any Group I
Unpaid Realized Loss Amount for each such Class;
(D) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to any Net Swap Receipts) for
such Distribution Date;
(E) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date, an amount equal to any
remaining unpaid Basis Risk Carry Forward Amount with respect to the
Group I Principal Certificates for that Distribution Date, first,
concurrently to the Class I-A Certificates, pro rata, based on their
respective Class Certificate Balances immediately prior to that
Distribution Date, up to their respective unpaid remaining Basis
Risk Carry Forward Amounts (provided that, if for any Distribution
Date, after the allocation of the remaining unpaid Basis Risk Carry
Forward Amounts to the Class I-A Certificates, the remaining unpaid
Basis Risk Carry Forward Amounts for any of the Class I-A
Certificates is reduced to zero, any amount of remaining unpaid
Basis Risk Carry Forward Amounts that would have been allocated to
that Class I-A Certificate for that Distribution Date will instead
be allocated, pro rata, based on their respective remaining unpaid
Basis Risk Carry Forward Amounts, to the other Class I-A
Certificates to the extent the other Class I-A Certificates have any
remaining unpaid Basis Risk Carry Forward Amounts), and, second,
sequentially to the Class I-M-1, Class I-M-2, Class I-M-3, Class
I-M-4, Class I-M-5, Class I-M-6, Class I-M-7 and Class I-M-8
Certificates, in that order, in each case up to their respective
unpaid remaining Basis Risk Carry Forward Amounts;
(F) to the Supplemental Interest Account, the amount of any
Defaulted Swap Termination Payment owed to the Group I Swap
Provider;
(G) to the Holders of the Class I-CE Certificates, the
remainder of the Class I-CE Distributable Amount not distributed
pursuant to Sections 4.02(a)(iii)(A)-(F); and
(H) to the Holders of the Class I-R Certificates, any
remaining amount, in respect of each Group I Trust REMIC.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class I-A Certificates does not receive in full the related
Group I Accrued Certificate Interest Distribution Amount or the related Unpaid
Interest Amount, if any, then such shortfall will be allocated to the Holders of
such Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of Group I Principal Certificates has
been reduced to zero, that Class of Certificates shall no longer be entitled to
receive any related unpaid Basis Risk Carry Forward Amounts except to the extent
the Class Certificate Balance is increased as a result of any Subsequent
Recovery for Loan Group I.
(b) Distributions on Group II Certificates. On each Distribution
Date, the Trustee will make the disbursements and transfers from amounts then on
deposit in the Distribution Account in the following order of priority and to
the extent of the Group II Available Funds remaining and, on such Distribution
Date, shall make distributions on the Group II Certificates in accordance with
such allocation:
first, concurrently,
(i) from the Group II Available Funds for Subgroup II-1, to
the Subgroup II-1 Certificates (other than the Class II-1-PO
Certificates), pro rata, the applicable Group II Accrued Certificate
Interest for that Distribution Date; provided, that for purposes of
distributions pursuant to this clause (A), the Group II Accrued
Certificate Interest for the Class II-1-IO Certificates will be
calculated solely on the basis of that portion of the Notional
Amount of the Class II-1-IO Certificates attributable to the
Subgroup II-1 Mortgage Loans; provided, further, that (i) the Group
II Accrued Certificate Interest with respect to the Class II-1-A-4,
Class II-1-A-6 and Class II-1-A-15 Certificates on or before the
applicable Class II-1-A-4 Accretion Termination Date, Class II-1-A-6
Accretion Termination Date or the Class II-1-A-15 Accretion
Termination Date, respectively, will be added to the Class
Certificate Balance of the Class II-1-A-4, Class II-1-A-6 and Class
II-1-A-15 Certificates, respectively, and distributed as principal;
(ii) from the Group II Available Funds for Subgroup II-2, to
the Class II-AR, Class II-2-A-1 Certificates and the Class II-2-IO
Certificates, pro rata, the applicable Group II Accrued Certificate
Interest for that Distribution Date; provided, that for purposes of
distributions pursuant to this clause (B), the Group II Accrued
Certificate Interest for the Class II-2-IO Certificates will be
calculated solely on the basis of that portion of the Notional
Amount of the Class II-2-IO Certificates attributable to the
Subgroup II-2 Mortgage Loans; and
second, concurrently,
(i) from the Group II Available Funds for Subgroup II-1, to
the Subgroup II-1 Certificates (other than the Class II-1-A-9 and
Class II-1-A-14 Certificates) and Class II-1-PO Certificates,
concurrently, as follows:
(A) to the Subgroup II-1 Certificates (other than the
Class II-1-A-9 and Class II-1-A-14 Certificates), the Group II
Senior Optimal Principal Amount for Subgroup II-1 for that
Distribution Date sequentially as follows:
(1) first, to the Class II-1-A-7 and Class
II-1-A-10 Certificates, pro rata, the Subgroup II-1
Priority Principal Distribution Amount, until their
Class Certificate Balances are reduced to zero;
(2) second, to the Class II-1-A-1, Class
II-1-A-11, Class II-1-A-12 and Class II-1-A-13
Certificates, pro rata, up to an amount of $1,900,000
until the Class Certificate Balances are reduced to
zero;
(3) third, sequentially to the Class II-1-A-5 and
Class II-1-A-6 Certificates, up to an amount of $445,000
until the Class Certificate Balances are reduced to
zero;
(4) fourth, sequentially to the Class II-1-A-8 and
Class II-1-A-15 Certificates, until their Class
Certificate Balances are reduced to zero;
(5) fifth, to the Class II-1-A-2 and Class
II-1-A-3 Certificates, pro rata, until their Class
Certificate Balances are reduced to zero;
(6) sixth, to the Class II-1-A-4 Certificates
until its Class Certificate Balance is reduced to zero;
(7) seventh, sequentially to the Class II-1-A-5
and Class II-1-A-6 Certificates, pro rata, until their
Class Certificate Balances are reduced to zero;
(8) eighth, to the Class II-1-A-1, Class
II-1-A-11, Class II-1-A-12 and Class II-1-A-13
Certificates, pro rata, until their Class Certificate
Balances are reduced to zero; and
(9) ninth, to the Class II-1-A-7 and Class
II-1-A-10 Certificates, pro rata, until their Class
Certificate Balances are reduced to zero; and
(10) ten, to the Class II-1-PO Certificates, the
Group II-1-PO Principal Distribution Amount for Subgroup
II-1 for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
provided, however, that notwithstanding the priorities in clause (B)(1), on each
Distribution Date after the Cross-Over Date, distributions of principal on the
Subgroup II-1 Certificates (other than the Class II-1-A-9 and Class II-1-A-14
Certificates) will be made pro rata among all such Certificates based on their
Class Certificate Balances, until their Class Certificate Balances are reduced
to zero.
(ii) from the Group II Available Funds for Subgroup II-2, to the
Class II-AR, Class II-2-A-1 and Class II-2 Certificates, concurrently, as
follows:
(A) sequentially to the Class II-AR and Class II-2-A-1
Certificates, the Group II Senior Optimal Principal Amount for
Subgroup II-2 for that Distribution Date, until their Class
Certificate Balances are reduced to zero;
(B) to the Class II-2-PO Certificates, the Group II-2-PO
Principal Distribution Amount for Subgroup II-2 for that
Distribution Date, until its Class Certificate Balance is reduced to
zero; and
third, on any Distribution Date on or prior to the Cross-Over Date,
(A)(i) first, from any PO Recoveries for that Distribution Date related to
Subgroup II-1, to the Class II-1-PO Certificates, up to the Subgroup II-1-PO
Deferred Amount for that Distribution Date and (ii) second, from the remaining
Group II Available Funds for Subgroup II-1, to the Class II-1-PO Certificates,
up to the remaining Subgroup II-1-PO Deferred Amount for that Distribution Date;
and (B)(i) first, from any PO Recoveries for that Distribution Date related to
Subgroup II-2 to the Class II-2 Certificates, up to the Subgroup II-2-PO
Deferred Amount for that Distribution Date and (ii) second, from the remaining
Group II Available Funds for Subgroup II-2 to the Class II-2-PO Certificates, up
to the remaining Subgroup II-2-PO Deferred Amount for such Distribution Date;
provided that, (1) on any Distribution Date, the aggregate of the distributions
pursuant to clauses (A)(ii) and (B)(ii) of this priority third of the Group II
PO Deferred Amounts will not exceed the Group II Subordinate Principal
Distribution Amount for that Distribution Date, (2) such distributions will not
reduce the Class Certificate Balance of the Class II-1-PO Certificates of Class
II-2-PO Certificates and (3) no distribution will be made in respect of any such
Subgroup II-1-PO Deferred Amounts after the Cross-Over Date;
fourth, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-M-1 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-M-1 Certificates for that Distribution Date and (2) the Class II-M-1
certificates' Allocable Share for that Distribution Date;
fifth, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-B-1 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-B-1 Certificates for that Distribution Date and (2) the Class II-B-1
Certificates' Allocable Share for that Distribution Date;
sixth, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-B-2 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-B-2 Certificates for that Distribution Date and (2) the Class II-B-2
Certificates' Allocable Share for that Distribution Date;
seventh, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-B-3 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-B-3 Certificates for that Distribution Date and (2) the Class II-B-3
Certificates' Allocable Share for that Distribution Date;
eighth, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-B-4 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-B-4 Certificates for that Distribution Date and (2) the Class II-B-4
Certificates' Allocable Share for that Distribution Date;
ninth, from the remaining Group II Available Funds for both
Subgroups in Group II in the aggregate, to the Class II-B-5 Certificates in the
following order: (1) the Group II Accrued Certificate Interest on the Class
II-B-5 Certificates for that Distribution Date and (2) the Class II-B-5
Certificates' Allocable Share for that Distribution Date; and
tenth, to the Class II-AR Certificates, any remaining portion (which
is expected to be zero) of the Group II Available Funds each Group II REMIC for
that Distribution Date.
(c) All principal distributions to the Class I-A Certificates on any
Distribution Date shall be allocated by the Trustee concurrently among the Class
I-1-A Certificates and the Class I-2-A Certificates based on the Class I-A
Principal Allocation Percentage for the Class I-1-A Certificates and the Class
I-2-A Certificates, as applicable. However, if the Class Certificate Balances of
the Class I-1-A Certificates are reduced to zero, then the remaining amount of
principal distributions distributable to the Class I-1-A Certificates on that
Distribution Date, and the amount of principal distributions distributable on
all subsequent Distribution Dates, shall be distributed by the Trustee to the
Class I-2-A Certificates, in accordance with the principal distribution
allocations set forth in this Section 4.02(c), until their respective Class
Certificate Balances have been reduced to zero. Any distributions of principal
to the Class I-1-A Certificates shall be made by the Trustee first from Group I
Available Funds relating to the Subgroup I-1 Mortgage Loans. Any distributions
of principal to the Class I-2-A Certificates shall be made by the Trustee first
from Group I Available Funds relating to the Subgroup I-2 Mortgage Loans.
Any principal distributions allocated to the Class I-2-A
Certificates shall be distributed by the Trustee to the Class I-2-A-1
Certificates and the Class I-2-A-2 Certificates, pro rata, based on their
respective Class Certificate Balances, until their Class Certificate Balances
have been reduced to zero.
(d) On any Distribution Date, any Relief Act Interest Shortfalls for
Loan Group I for such Distribution Date and Net Prepayment Interest Shortfalls
for such Distribution Date shall be allocated by the Trustee as a reduction in
the following order:
(i) First, to the portion of the Class I-CE Distributable Amount
allocable to interest; and
(ii) Second, pro rata, as a reduction of the Group I Accrued
Certificate Interest Distribution Amount for the Class I-A and Class I-M
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled.
(e) On any Distribution Date, to the extent the Amount Available for
Subgroup II-1 Principal is insufficient to make the full distribution required
to be made pursuant to clause (i), priority second sub-clause (A) above, (x) the
amount distributable on the Class II-1-PO Certificates in respect of principal
pursuant to such clause (i), priority second sub-clause (A) above shall be equal
to the product of (1) the Amount Available for Subgroup II-1 Principal and (2) a
fraction, the numerator of which is the Group II PO Principal Distribution
Amount for Subgroup II-1 and the denominator of which is the sum of the Group II
PO Principal Distribution Amount for Subgroup II-1 and the Group II Senior
Optimal Principal Amount for Subgroup II-1 and (y) the amount distributable on
the Subgroup II-1 Certificates in respect of principal shall be equal to the
product of (1) the Amount Available for Subgroup II-1 Principal and (2) a
fraction, the numerator of which is the Senior Optimal Principal Amount for
Subgroup II-1 and the denominator of which is the sum of the Group II Senior
Optimal Principal Amount for Subgroup II-1 and the Group II PO Principal
Distribution Amount for Subgroup II-1.
On any Distribution Date, to the extent the Amount Available for
Subgroup II-2 Principal is insufficient to make the full distribution required
to be made pursuant to clause (ii), priority second sub-clause (B) above, (x)
the amount distributable on the Class II-2-PO Certificates in respect of
principal pursuant to such clause (ii), priority second sub-clause (B) above
shall be equal to the product of (1) the Amount Available for Subgroup II-2
Principal and (2) a fraction, the numerator of which is the Group II PO
Principal Distribution Amount for Subgroup II-2 and the denominator of which is
the sum of the Group II PO Principal Distribution Amount for Subgroup II-2 and
the Group II Senior Optimal Principal Amount for Subgroup II-2 and (y) the
amount distributable on the Subgroup II-2 Certificates in respect of principal
shall be equal to the product of (1) the Amount Available for Subgroup II-2
Principal and (2) a fraction, the numerator of which is the Group II Senior
Optimal Principal Amount for Subgroup II-2 and the denominator of which is the
sum of the Senior Optimal Principal Amount for Subgroup II-2 and the Group II PO
Principal Distribution Amount for Subgroup II-2.
(f) On each Distribution Date prior to the Class II-1-A-4 Accretion
Termination Date, the Class II-1-A-4 Accrual Amount will be added to the Class
Certificate Balance of the Class II-1-A-4 Certificates (and thereafter accrue
interest at the applicable Pass-Through Rate).
On each Distribution Date prior to the Class II-1-A-4 Accretion
Termination Date, the Class II-1-A-4 Accrual Amount, if any, will be distributed
as principal in the following order of priority:
(i) first, to the Class II-1-A-2 and Class II-1-A-3 Certificates,
pro rata, until the Class Certificate Balance for each such Class has been
reduced to zero, and
(ii) second, to the Class II-1-A-4 Certificates, until the Class
Certificate Balance for such class has been reduced to zero.
(g) On each Distribution Date prior to the Class II-1-A-6 Accretion
Termination Date, the Class II-1-A-6 Accrual Amount will be added to the Class
Certificate Balance of the Class II-1-A-6 Certificates (and thereafter accrue
interest at the applicable Pass-Through Rate).
On each Distribution Date prior to the Class II-1-A-6 Accretion
Termination Date, the Class II-1-A-6 Accrual Amount, if any, will be distributed
as principal sequentially to the Class II-1-A-5 and Class II-1-A-6 Certificates,
pro rata, until the Class Certificate Balance for each such class has been
reduced to zero.
(h) On each Distribution Date prior to the Class II-1-A-15 Accretion
Termination Date, the Class II-1-A-15 Accrual Amount will be added to the Class
Certificate Balance of the Class II-1-A-15 Certificates (and thereafter accrue
interest at the applicable Pass-Through Rate).
On each Distribution Date prior to the Class II-1-A-15 Accretion
Termination Date, the Class II-1-A-15 Accrual Amount, if any, will be
distributed as principal sequentially to the Class II-1-A-8 and Class II-1-A-15
Certificates, pro rata, until the Class Certificate Balance for each such class
has been reduced to zero.
Section 4.02 Subordination (a) On each Distribution Date, the amount
referred to in the definition of Accrued Certificate Interest (without any
reduction referred to therein) for each Class of Group II Senior Certificates
(other than the Class PO Certificates) and Group II Subordinate Certificates for
such Distribution Date shall be reduced by (i) the related Class's pro rata
share of Net Prepayment Interest Shortfalls with respect to the Mortgage Loans
in the related Subgroup, based on such Class's Accrued Certificate Interest for
such Distribution Date without taking into account such Net Prepayment Interest
Shortfalls and (ii) the related Class's pro rata share of (A) after the related
Special Hazard Coverage Termination Date with respect to each Mortgage Loan in
the related Subgroup, that became a Special Hazard Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the excess of one
month's interest at the related net Mortgage Interest Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month, (B) after the related Bankruptcy Coverage
Termination Date with respect to each Mortgage Loan in the related Subgroup that
became subject to a Bankruptcy Loss during the calendar month preceding the
month of such Distribution Date, the interest portion of the related Deficient
Valuation, (C) each Relief Act Reduction incurred on a Mortgage Loan in the
related Subgroup, during the calendar month preceding the month of such
Distribution Date and (D) after the related Fraud Loss Coverage Termination Date
with respect to each Mortgage Loan in the related Subgroup that became a Fraud
Loan during the calendar month preceding the month of such Distribution Date,
the excess of one month's interest at the related net Mortgage Interest Rate on
the Stated Principal Balance of such Mortgage Loan as of the Due Date in such
month over the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month. For purposes of calculating the
reduction in the amount referred to in clause (i) of the definition of Accrued
Certificate Interest for the Class II-1-IO and Class II-2-IO Certificates in
respect of any Subgroup, such reduction shall be based on the amount of interest
accruing on the portion of the Class II-1-IO Notional Amount or Class II-2-IO
Notional Amount, respectively, derived from such Subgroup. For purposes of
calculating the reduction in the amount referred to in the definition of Accrued
Certificate Interest for each Class of Group II Subordinate Certificates in
respect of any Subgroup, such reduction shall be based upon the amount of
interest accruing at the Required Coupon for such Subgroup, on such Class'
proportionate share, based on Class Certificate Balance, of the related Group II
Subgroup Subordinate Amount for that Distribution Date.(b) Notwithstanding the
priority and allocation contained in Section 4.02(b)(ii), if with respect to any
Class of Group II Subordinate Certificates on any Distribution Date, such Class
has not satisfied the related Class Prepayment Distribution Trigger, no
distribution of amounts pursuant to clauses (ii) and (iii) of the definition of
the Group II Subordinate Optimal Principal Amount will be made to any such
Classes (the "Restricted Classes") and the amount of such amounts pursuant to
clauses (ii) and (iii) of the definition of the applicable Group II Subordinate
Optimal Principal Amount otherwise distributable to the Restricted Classes shall
be distributed to any Classes of Group II Subordinate Certificates, which are
not Restricted Classes, having lower numerical Class designations than such
Class, pro rata based on their respective Class Certificate Balances immediately
prior to such Distribution Date. The calculation of any amount to be distributed
under this Section 4.02(d) shall be made by the applicable Servicer.
(c) On each Distribution Date, after application of Group II
Available Funds in accordance with Section 4.02(b)(i) items first and second,
the Trustee shall effect cross-collateralization among the Subgroups of Group II
Certificates in the following priority:
(i) Subject to Section 4.02(c), to the extent any Accrued
Certificate Interest with respect to any Class of Group II Senior
Certificates, the Class II-1-IO Certificates and the Class II-2-IO
Certificates remains unpaid after application of Group II Available Funds
in accordance with Section 4.02(b)(i) items first and second, Group II
Available Funds remaining after payments on the Group II Senior
Certificates shall be applied to cover such unpaid Accrued Certificate
Interest, and shall be applied pro rata based on the amounts of such
unpaid Accrued Certificate Interest to the extent there are insufficient
funds to pay such amounts in full.
(ii) Prior to the Cross-Over Date, to the extent any Group II PO
Deferred Amount has not been paid from Group II Available Funds for the
related Subgroup, the available Group II Subordinate Principal
Distribution Amount shall be applied to pay any such Group II PO Deferred
Amount.
(iii) If on any Distribution Date, one or more of the Subgroups of
Group II Certificates is an Undercollateralized Subgroup, the available
Group II Subordinate Principal Distribution Amount shall be paid to each
such Undercollateralized Subgroup as principal to the Group II Senior
Certificates of each such Undercollateralized Subgroup in accordance with
the priorities set forth in Section 4.02(b)(i) until the aggregate Class
Certificate Balance of the Senior Certificates of each such
Undercollateralized Subgroup equals the Stated Principal Balance of the
Mortgage Loans in the related Subgroup (net of the applicable PO
Percentage of the Stated Principal Balance of each Discount Mortgage Loan
in such Subgroup, if any). If more than one Subgroup is an
Undercollateralized Subgroup, the available Group II Subordinate Principal
Distribution Amount shall be distributed between such Undercollateralized
Subgroups pro rata according to Stated Principal Balances of the Mortgage
Loans in the related Subgroups. Any application of the Group II
Subordinate Principal Distribution Amount pursuant to this paragraph (iii)
will reduce distributions of such amount to the Group II Subordinate
Certificates in reverse order of priority pursuant to the priorities set
forth in Section 4.02(b)(ii)(A) through (L).
(iv) On or after the date on which the Class Certificate Balances of
all of the Group II Senior Certificates in any of the Subgroups have been
reduced to zero, amounts otherwise distributable as principal on the Group
II Subordinate Certificates, up to the applicable Apportioned Subordinate
Principal Distribution Amount, shall be paid pro rata as principal to the
remaining Group II Senior Certificates of such other Subgroup in
accordance with the priorities set forth in Section 4.02(b)(i), provided
that on such Distribution Date (a) the Aggregate Subordinate Percentage
for such Distribution Date is less than twice the initial Aggregate
Subordinate Percentage or (b) the average outstanding principal balance of
the 60+ Day Delinquent Mortgage Loans with respect to Group II Mortgage
Loans only as a percentage of the Subordinate Amount for the related
Subgroup is greater than or equal to 50%. Any application of the
applicable Apportioned Subordinate Principal Distribution Amount to the
Group II Senior Certificates pursuant to this paragraph will reduce
distributions of the Group II Subordinate Principal Distribution Amount to
the Group II Subordinate Certificates, pro rata, based on the Class
Certificate Balances of the Group II Subordinate Certificates.
(d) In the event that the Trust Fund is terminated pursuant to
Section 9.01(a), the Trustee shall remit the amount of any excess by wire
transfer of immediately available funds to the holders of the Class II-AR
Certificates in accordance with the instructions of the holders of the Class
II-AR Certificates.
Section 4.03 Allocation of Realized Losses for Group II. (a) On or
prior to each Distribution Date, the Servicer shall determine the total amount
of Realized Losses, including Excess Losses and the allocation of such total
amount for Group II as set forth below. Realized Losses occurring on the
Mortgage Loans shall be allocated as follows:
(i) the applicable PO Percentage of any Realized Loss, including any
Excess Loss, shall be allocated (A) to the Class II-1-PO Certificates in
the case of a Realized Loss occurring on any Discount Mortgage Loan in the
Subgroup II-1, until the Class Certificate Balance of the Class II-1-PO
Certificates is reduced to zero; and (B) to the Class II-2-PO
Certificates, in the case of a Realized Loss occurring on any Discount
Mortgage Loan in Subgroup II-2, until the Class Certificate Balance of the
Class II-2-PO Certificates is reduced to zero;
(ii) the applicable Non-PO Percentage of any Realized Loss with
respect to any Mortgage Loan (other than an Excess Loss) shall be
allocated first to the Group II Subordinate Certificates in reverse order
of their respective numerical Class designations (beginning with the Class
of Group II Subordinate Certificates then outstanding with the highest
numerical Class designation) until the respective Class Certificate
Balance of each such Class is reduced to zero, and second to the Group II
Senior Certificates of the related Subgroup (not including the Interest
Only Certificates and Class PO Certificates) pro rata on the basis of
their respective Class Certificate Balances immediately prior to the
related Distribution Date until the Class Certificate Balance of each such
Class has been reduced to zero; provided, however, that after the
Cross-Over Date, that the Class II-1-A-10 Certificates will also bear the
principal portion of all Realized Losses (other than Excess Losses)
allocable to the Class II-1-A-7 Certificates for so long as the Class
Certificate Balance of the Class II-1-A-10 Certificates is greater than
zero and the Class II-1-A-13 Certificates will also bear the principal
portion of all Realized Losses (other than Excess Losses) allocable to the
Class II-1-A-1, Class II-1-A-11, and Class II-1-A-12 Certificates for so
long as the Class Certificate Balance of the Class II-1-A-13 Certificates
is greater than zero.
(iii) the applicable Non-PO Percentage of any Excess Losses
occurring on any Mortgage Loan shall be allocated among (1) the Subgroup
II-1 Certificates, in the case of an Excess Loss on a Subgroup II-1
Mortgage Loan; and the Subgroup II-2 Certificates, in the case of an
Excess Loss on a Subgroup II-2 Mortgage Loan (other than, in each case,
the related Interest Only Certificates and Class PO Certificates of such
Subgroup) and (2) each Class of Group II Subordinate Certificates, in the
case of an Excess Loss on a Mortgage Loan, pro rata based upon their
respective Class Certificate Balances or, in the case of the Group II
Subordinate Certificates their pro rata portion of the Subordinated Amount
for the Subgroup which incurred the Excess Loss (based on their respective
Class Certificate Balances) after giving effect to distributions of
principal on such Distribution Date.
(b) The Class Certificate Balance of the Class of Group II
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the sum of (i) the
amount of any payments on the Class PO Certificates in respect of any PO
Deferred Amounts pursuant to Section 4.02(b) priority third, sub-clauses (A)(ii)
and (B)(ii) and (ii) the amount, if any, by which the aggregate of the Class
Certificate Balances of the Group II Senior Certificates (other than the Class
PO Certificates) and Group II Subordinate Certificates (after giving effect to
the distribution of principal and the allocation of Realized Losses with respect
to the Mortgage Loans) exceeds the aggregate Stated Principal Balance of the
Mortgage Loans in the related Subgroup for the following Distribution Date, less
any Deficient Valuations occurring before the Bankruptcy Loss Coverage Amount
has been reduced to zero and less the PO Percentage of any related Discount
Mortgage Loans; and
(c) Any allocation of Realized Losses to a Certificate or any
reduction in the Class Certificate Balance of a Certificate, pursuant to Section
4.03(a) or (b) above shall be accomplished by reducing the Class Certificate
Balance thereof, as applicable, immediately following the distributions made on
the related Distribution Date in accordance with the definition of "Class
Certificate Balance" herein; provided that no Realized Loss with respect any
Subgroup shall be allocated to reduce the Class Certificate Balance of a Group
II Senior Certificate (other than the Class PO Certificates) to the extent that
such allocation would reduce the aggregate Class Certificate Balance of all of
the Class PO Certificates (other than the Class PO Certificates) and Group II
Subordinate Certificates to an amount less than the aggregate Stated Principal
Balance for the Subgroups of Group II for the following Distribution Date minus
any related Deficient Valuations occurring before the related Bankruptcy Loss
Coverage Termination Date and minus the PO Percentage of any related Discount
Mortgage Loans (such limitation, the "Loss Allocation Limitation").
(d) Prior to the Cross-Over Date, with respect to any Non-PO
Recoveries received during a Prepayment Period with respect to any Mortgage
Loans, the Class Certificate Balance of one or more Classes of Certificates that
have previously had Realized Losses allocated, will be increased for the related
Distribution Date, as follows:
(i) first, up to the amount of the Non-PO Recoveries with respect to
a Subgroup, the Class Certificate Balance of each Class of Senior
Certificates (other than the Class PO Certificates and Interest Only
Certificates) in the Subgroup corresponding to such Subgroup will be
increased, pro rata, up to the amount of the excess, if any, of (x)
unrecovered Realized Losses previously allocated to each such Class, if
any over (y) amounts previously applied to the increase of the Class
Certificate Balance of such Class pursuant to this Section 4.03(d)(i); and
(ii) second, up to the amount of the Non-PO Recoveries remaining
after allocation pursuant to the preceding clause (i), the Class
Certificate Balance of each related Class of Group II Subordinate
Certificates, in order of seniority, will be increased, by the amount of
the excess, if any, of (x) unrecovered Realized Losses previously
allocated to each such Class, if any, over (y) amounts previously applied
to the increase of the Class Certificate Balance of such Class pursuant to
this Section 4.03(d)(ii)(A).
(e) With respect to any Distribution Date on or after the Cross-Over
Date, the Trustee shall distribute the amount of any Group II Subsequent
Recovery on a Group II Mortgage Loan received during the calendar month prior to
that Distribution Date as follows:
(i) (A) to the Class II-1-PO Certificates, the PO Percentage of any
Recovery on a Subgroup II-1 Mortgage Loan and (B) to the Class II-2-PO
Certificates, the PO Percentage of any Recovery on a Subgroup II-2
Mortgage Loan; and
(ii) to the Classes of Senior Certificates (other than the Class PO
Certificates and Interest Only Certificates) of the Subgroup corresponding
to the Subgroup of the Mortgage Loan for which the Group II Subsequent
Recovery was received, pro rata, the amount of the Group II Subsequent
Recovery remaining after distribution pursuant to the preceding clause
(i);
provided, however, that any distribution to a Class of Certificates pursuant to
this Section 4.03(e) shall not reduce the Class Certificate Balance of such
Class.
Section 4.04 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicers, the Depositor and each Rating Agency a
statement based in part on information provided by the applicable Servicer
setting forth with respect to the related distribution:(i)the actual
Distribution Date, the related Record Date, the Interest Accrual Period(s) for
each Class for such Distribution Date and the LIBOR Determination Date for such
Interest Accrual Period;
(ii) the amount of Group I Available Funds and Group II Available
Funds;
(iii) (A) the amount of Group I Available Funds allocable to
principal, the Group I Principal Remittance Amount (separately identifying
the components thereof) and the Group I Principal Distribution Amount (and
the calculation thereof) and (B) the amount of Group II Available Funds
allocable to principal, the Group II Principal Remittance Amount
(separately identifying the components thereof) and the Group II Principal
Distribution Amount (and the calculation thereof);
(iv) the amount of Group I Available Funds allocable to interest and
each Group I Interest Remittance Amount and the amount of Group II
Available Funds allocable to interest;
(v) with respect to Group I only, the amount of any Unpaid Interest
Amount for each Class included in such distribution and any remaining
Unpaid Interest Amounts after giving effect to such distribution, any
Basis Risk Carry Forward Amount for each Class of Group I Certificates,
the amount of such Basis Risk Carry Forward Amount covered by withdrawals
from the Excess Reserve Fund Account or the Supplemental Interest Account
on such Distribution Date;
(vi) for each Loan Group, the aggregate amount of any Principal
Prepayments and repurchase proceeds included in the distributions to
Certificateholders;
(vii) with respect to Group I only, if the distribution to the
Holders of such Class of Certificates is less than the full amount that
would be distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the allocation of the
shortfall as between principal and interest, including any Basis Risk
Carry Forward Amount not covered by amounts in the Excess Reserve Fund
Account or the Supplemental Interest Account and any Basis Risk Carry
Forward Amount not covered by amounts in the Excess Reserve Fund Account;
(viii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date and the aggregate amount of all Advances recovered
during the related Due Period;
(ix) the Group I Pool Stated Principal Balance and Group II Pool
Stated Principal Balance for the related Distribution Date;
(x) the amount of the Expense Fees paid to or retained by the
Servicers or the Trustee with respect to such Distribution Date, in each
case, identifying the general purpose of such fees;
(xi) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xii) for each Loan Group, the amount of Advances included in the
distribution on such Distribution Date and the aggregate amount of
Advances reported by the Servicers (and the Trustee as successor servicer
and any other successor servicer, if applicable) as outstanding as of the
close of business on the Determination Date immediately preceding such
Distribution Date;
(xiii) for each Loan Group, the number and aggregate outstanding
principal balances of Mortgage Loans in such Loan Group (1) as to which
the Scheduled Payment is delinquent (as calculated in accordance with the
MBA method) 30 to 59 days, 60 to 89 days, 90 or more days, and in such
other periods and for such times as required by Regulation AB, (2) that
have become REO Property, (3) that are in foreclosure and (4) that are in
bankruptcy, in each case as of the close of business on the last Business
Day of the immediately preceding month;
(xiv) for each Loan Group, for each of the preceding 12 calendar
months, or all calendar months since the related Cut-off Date, whichever
is less, the aggregate dollar amount of the Scheduled Payments for such
Loan Group (A) due on all Outstanding Mortgage Loans in such Loan Group on
each of the Due Dates in each such month and (B) delinquent 60 days or
more on each of the Due Dates in each such month (as calculated in
accordance with the MBA method);
(xv) for each Loan Group, with respect to any Mortgage Loans in such
Loan Group that became REO Properties during the preceding calendar month,
the aggregate number of such Mortgage Loans and the aggregate outstanding
principal balance of such Mortgage Loans as of the close of business on
the Determination Date preceding such Distribution Date of the REO
Properties;
(xvi) for each Loan Group, the total number and outstanding
principal balance of any REO Properties in such Loan Group (and market
value, if available) as of the close of business on the Determination Date
preceding such Distribution Date;
(xvii) with respect to Group I only, whether a Trigger Event has
occurred and is continuing (including the calculation demonstrating the
existence of the Trigger Event);
(xviii) with respect to Group I only, the amount on deposit in each
Excess Reserve Fund Account and the Supplemental Interest Account (after
giving effect to distributions on such Distribution Date);
(xix) with respect to Group I only, in the aggregate and for each
Class of Certificates, the aggregate amount of Applied Realized Loss
Amounts incurred during the preceding calendar month and aggregate Applied
Realized Loss Amounts through such Distribution Date;
(xx) with respect to Group I only, the amount of any Net Monthly
Excess Cash Flow on such Distribution Date and the allocation of it to the
related Certificateholders with respect to Unpaid Interest Amounts,
Applied Realized Loss Amounts, Basis Risk Carry Forward Amounts;
(xxi) with respect to Group I only, the amount of any Net Swap
Payments, Net Swap Receipts, Swap Termination Payments or Defaulted Swap
Termination Payments;
(xxii) LIBOR and Swap LIBOR;
(xxiii) with respect to Group I only, the Subordinated Amount and
Specified Subordinated Amount;
(xxiv) with respect to Group I only, the Cumulative Loss Percentage
and the aggregate amount of Realized Losses used to calculate the
Cumulative Loss Percentage;
(xxv) with respect to Group I only, the amount distributed on the
Class I-CE Certificates;
(xxvi) for each Loan Group, with respect to each Class of
Certificates, any amounts not covered by Compensating Interest on such
Distribution Date;
(xxvii) for each Loan Group, the number of mortgage loans in the
applicable loan group with respect to which a reduction in the mortgage
interest rate has occurred pursuant to the Relief Act, as well as the
amount of any Interest Shortfalls during the related due period; both in
the aggregate and for each class of certificates in the applicable loan
group;
(xxviii) if provided by the applicable Servicer, for the applicable
Loan Group, any material changes to methodology regarding calculations of
delinquencies and charge offs;
(xxix) if provided by the applicable Servicer, for the applicable
Loan Group, any material modifications, extensions or waivers to pool
asset terms, fees, penalties or payments during the distribution period or
that have cumulatively become material over time;
(xxx) if provided by the applicable Servicer, for the applicable
Loan Group, material breaches of pool asset representations or warranties
or transaction covenants;
(xxxi) if provided by the applicable Servicer, for the applicable
Loan Group, if applicable, information regarding any new issuance of asset
backed securities backed by the same asset pool, any pool asset changes
(other than in connection with a pool asset converting into cash in
accordance with its terms), such as additions or removals in connection
with a prefunding period and pool asset substitutions and repurchases (and
purchase rates, if applicable), and cash flows available for future
purchases, such as the balances of any prefunding or revolving accounts,
if applicable;
(xxxii) if provided by the applicable Servicer, for the applicable
Loan Group, any material changes in the solicitation, credit granting,
underwriting, origination, acquisition or pool selection criteria or
procedures, as applicable, used to originate, acquire or select the new
pool assets;
(xxxiii) the amount of any Subsequent Recoveries for each Loan Group
for such Distribution Date; and
(xxxiv) for each Loan Group, the number of Mortgage Loans in such
Loan Group at the beginning and end of the applicable reporting period,
the pool factor, and the weighted average interest rate, and weighted
average remaining term.
In addition, each Form 10-D prepared and filed by the Trustee
pursuant to Section 8.12 shall include the following information with respect to
the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Trustee has actual knowledge or has received
written notice; and
(ii) material breaches of any covenants under this Agreement of
which the Trustee has actual knowledge or has received written notice.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency and the Depositor is limited, if
applicable, to the availability, timeliness and accuracy of the information
derived from the Servicers. The Trustee shall make available the above statement
via the Trustee's internet website. The Trustee's website will initially be
located at xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the website can
be obtained by calling the Trustee's investor relations desk at 0-000-000-0000.
A paper copy of the above statement will also be made available upon request.
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 investor relations desk and
indicating such. The Trustee may change the way the monthly statements to
Certificateholders 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. As a condition to access the Trustee's internet website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee will
not be liable for the dissemination of information in accordance with this
Agreement.
The Trustee shall make available to each Analytics Company via the
Trustee's internet website each statement to Certificateholders prepared
pursuant to this Section 4.02(b). The Trustee shall cooperate in good faith with
the Depositor and the Servicers to reconcile any discrepancies in such
statements, and the Trustee shall provide any corrections to such statements to
each Analytics Company as soon as reasonably practicable after the related
Distribution Date.
The Trustee will also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the monthly statement to Certificateholders
and may affix thereto any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder, a statement containing
the information set forth in clauses (a)(iii) and (a)(v) of this Section 4.02
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
(d) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments made or received under the Group I Interest Rate Swap Agreement and
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
Section 4.05 Allocation of Applied Realized Loss Amounts on Group I
Certificates. Any Applied Realized Loss Amounts relating to Loan Group I shall
be allocated by the Trustee to the most junior Class of Group I Subordinated
Certificates then Outstanding in reduction of the Class Certificate Balance
thereof and after the Class Certificate Balance of each Class of Group I
Subordinated Certificates is reduced to zero, first if the Class Certificate
Balance of the Class I-1-A Certificates exceeds the aggregate Stated Principal
Balance of the Subgroup I-1 Mortgage Loans, the amount of such excess will be
applied to reduce the Class Certificate Balance of the Class I-1-A Certificates,
until its Class Certificate Balance has been reduced to zero, and second, if the
Class Certificate Balance of the Class I-2-A Certificates exceeds the aggregate
Stated Principal Balance of the Subgroup I-2 Mortgage Loans, the amount of such
excess will be applied to reduce the Class Certificate Balance of the Class
I-2-A Certificates, until its Class Certificate Balance has been reduced to
zero. Among the Class I-2-A Certificates, the aggregate principal balance of the
Class I-2-A-2 and Class I-2-A-1 Certificates will be reduced in that order.
In the event Applied Realized Loss Amounts are allocated to any
Class of Certificates, their Class Certificate Balances shall be reduced by the
amount so allocated and no funds shall be distributed with respect to the
written down amounts or with respect to interest or Basis Risk Carry Forward
Amounts on the written down amounts on that Distribution Date or any future
Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Certificates of a Group that has been previously reduced by Applied
Realized Loss Amounts will be increased, in that order or seniority, by the
amount of the Subsequent Recoveries for the related Loan Group (but not in
excess of the Applied Realized Loss Amount allocated to the applicable Class of
Certificates).
Section 4.06 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
LIBOR. Until all of the Principal Certificates are paid in full, the Trustee
shall at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each LIBOR Determination Date. The Trustee
initially shall designate the Reference Banks (after consultation with the
Depositor). Each "Reference Bank" shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency market,
shall not control, be controlled by, or be under common control with, the
Trustee and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the Trustee
should terminate its appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Trustee shall have no liability or responsibility to any
Person for (i) the selection of any Reference Bank for purposes of determining
LIBOR or (ii) any inability to retain at least four Reference Banks which is
caused by circumstances beyond its reasonable control.
(i) The Pass-Through Rate for each Class of Principal Certificates
for each Interest Accrual Period shall be determined by the Trustee on
each LIBOR Determination Date so long as the Principal Certificates are
Outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the Principal Certificates in the table
relating to the Certificates in the Preliminary Statement. The Trustee
shall not have any liability or responsibility to any Person for its
inability, following a good-faith reasonable effort, to obtain quotations
from the Reference Banks or to determine the arithmetic mean referred to
in the definition of LIBOR, all as provided for in this Section 4.04 and
the definition of LIBOR. The establishment of LIBOR and each Pass-Through
Rate for the Principal Certificates by the Trustee shall (in the absence
of manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Trustee.
Section 4.07 Supplemental Interest Account and Posted Collateral
Account. On the Closing Date, the Trustee shall establish and maintain in its
name, a separate non-interest bearing trust account for the benefit of the
holders of the Group I Principal Certificates and the Class I-CE Certificates
(the "Supplemental Interest Account") as a part of the Trust Fund. The
Supplemental Interest Account shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement. Funds in the Supplemental Interest Account
shall remain uninvested.
On the Business Day immediately preceding any Distribution Date,
Swap Termination Payments, Net Swap Payments owed to the Group I Swap Provider
and Net Swap Receipts for that Distribution Date will be deposited into the
Supplemental Interest Account, prior to distribution to Certificateholders. With
respect to any Distribution Date, funds in the Supplemental Interest Account
will be distributed in the following order of priority:
(i) to the Group I Swap Provider, the sum of (x) all Net Swap
Payments and (y) any Swap Termination Payment (to the extent not
previously received by the Group I Swap Provider as a Replacement Group I
Swap Provider Payment), other than a Defaulted Swap Termination Payment,
to the Group I Swap Provider, if any, owed for that Distribution Date;
(ii) concurrently, to the Class I-A Certificates, to pay Group I
Accrued Certificate Interest Distribution Amounts and, if applicable, any
Unpaid Interest Amounts as described in Section 4.01(a)(i) above, to the
extent unpaid from Group I Available Funds;
(iii) sequentially, to the Class I-M-1, Class I-M-2, Class I-M-3,
Class I-M-4, Class I-M-5, Class I-M-6, Class I-M-7 and Class I-M-8
Certificates, in that order, to pay Group I Accrued Certificate Interest
and, if applicable, Unpaid Interest Amounts for such Classes to the extent
unpaid from other Group I Available Funds;
(iv) to the Group I Principal Certificates, to pay any Basis Risk
Carry Forward Amounts as described, and in the same manner and priority as
set forth in Section 4.01(a)(iii)(E) above, to the extent unpaid from
other Group I Available Funds (including funds on deposit in the Excess
Reserve Fund Account);
(v) first to the Class I-A Certificates, and then sequentially to
the Class I-M-1, Class I-M-2, Class I-M-3, Class I-M-4, Class I-M-5, Class
I-M-6, Class I-M-7 and Class I-M-8 Certificates, in that order, to pay
principal as described, and in the same manner and order of priority as
set forth, in Section 4.01(a)(ii)(A) or 4.01(a)(ii)(B) above, as
applicable, but only to the extent necessary to restore the Subordinated
Amount to the Specified Subordinated Amount as a result of current or
prior Realized Losses in Loan Group I not previously reimbursed, after
giving effect to payments and distributions from other Group I Available
Funds;
(vi) to the Class I-A certificates, as follows:
(A) to the Class I-1-A and Class I-2-A Certificates, on a pro rata
basis, in each case in an amount equal to the remaining Unpaid Realized Loss
Amount for such Class, to the extent unpaid from other Group I Available Funds;
and
(B) among the Class I-2-A Certificates, first to the Class I-2-A-1
Certificates and then Class I-2-A-2 Certificates to the in an amount equal to
the remaining Unpaid Realized Loss Amount for such Class, to the extent unpaid
from other Group I Available Funds;
(vii) sequentially, to the Class I-M-1, Class I-M-2, Class I-M-3,
Class I-M-4, Class I-M-5, Class I-M-6, Class I-M-7 and Class I-M-8
Certificates, in that order, to pay any Unpaid Realized Loss Amounts, in
each case in an amount equal to the remaining Unpaid Realized Loss Amount
for each such Class, to the extent unpaid from other Group I Available
Funds;
(viii) to the Group I Swap Provider, any Defaulted Swap Termination
Payment owed to the Group I Swap Provider for that Distribution Date; and
(ix) to the Holders of the Class I-CE Certificates, any remaining
amounts.
Notwithstanding any other provision in this Agreement, in the event
that the Group I Interest Rate Swap Agreement is terminated and the Trust enters
into a replacement Group I Interest Rate Swap Agreement and the Trust is
entitled to receive a payment from a replacement Group I Swap Provider, the
Trustee shall direct the replacement Group I Swap Provider to make such payment
(the "Replacement Group I Swap Provider Payment") to the Supplemental Interest
Account. The Group I Swap Provider shall be entitled to receive from the
Supplemental Interest Account the lesser of (x) the amount so received from the
Replacement Group I Swap Provider and (y) any Swap Termination Payment owed to
the Group I Swap Provider (to the extent not already paid by the Trust) that is
being replaced immediately upon receipt of the Replacement Group I Swap Provider
Payment, regardless of whether the date of receipt thereof is a Distribution
Date; provided that to the extent that the Replacement Group I Swap Provider
Payment is less than the Swap Termination Payment owed to the Group I Swap
Provider, any remaining amounts will be paid to the Group I Swap Provider on the
subsequent Distribution Date (unless the Replacement Group I Swap Provider
Payment is paid to the Group I Swap Provider on a Distribution Date, in which
case such remaining amounts will be paid on such Distribution Date) in
accordance with the priority of payments described in Section 4.01 of this
Agreement. For the avoidance of doubt, the parties agree that the Group I Swap
Provider shall have first priority to any Replacement Group I Swap Provider
Payment over the payment by the Trust to Certificateholders, any Servicer, the
Custodian, the Trustee or any other Person.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Group I Swap Provider cannot be
obtained, then the Trustee shall deposit the Swap Termination Payment into a
separate non-interest bearing reserve account that constitutes a part of the
Supplemental Interest Account. On each subsequent Distribution Date (so long as
funds are available in the applicable reserve account), the Trustee shall
withdraw from such reserve account and deposit into the Supplemental Interest
Account an amount equal to the amount of any Net Swap Receipt due the Trust
under the Group I Interest Rate Swap Agreement (calculated in accordance with
the terms of the original Group I Interest Rate Swap Agreement) and treat such
amount as a Net Swap Receipt for purposes of determining the distributions from
the Supplemental Interest Account.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Account shall be distributed pursuant to the priorities
set forth in this Section 4.05.
The Trustee shall account for the Supplemental Interest Account as
assets of a grantor trust under subpart E, Part I of subchapter J of the Code
and not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Supplemental Interest Account are the Class I-CE
Certificateholders. For federal income tax purposes, Net Swap Payments and Swap
Termination Payments payable to the Group I Swap Provider from Group I Available
Funds shall be deemed to be paid to the Supplemental Interest Account from the
Group I Upper Tier REMIC, first, by the Holder of the Class I-CE Certificates
(in respect of the Class I-IO Interest and, if applicable, Class I-CE Interest)
and second, other than any Defaulted Swap Termination Payment, by the Holders of
the applicable Class or Classes of Group I LIBOR Certificates (in respect of
Class I-IO Shortfalls) as and to the extent provided in Section 8.15.
Any Basis Risk Carry Forward Amounts and, without duplication, Group
I Upper Tier Carry Forward Amounts distributed by the Trustee to the Group I
LIBOR Certificateholders from the Excess Reserve Fund Account or the
Supplemental Interest Account shall be accounted for by the Trustee, for federal
income tax purposes, as amounts paid first to the Holders of the Class I-CE
Certificates (in respect of the Class I-CE Interest or the Class I-IO Interest,
respectively) and then to the respective Class or Classes of Group I LIBOR
Certificates. In addition, the Trustee shall account for the rights of Holders
of each Class of Group I LIBOR Certificates to receive payments of Basis Risk
Carry Forward Amounts and, without duplication, Group I Upper Tier Carry Forward
Amounts from the Supplemental Interest Account (along with Basis Risk Carry
Forward Amounts payable from the Excess Reserve Fund Account) and the obligation
to pay Class I-IO Shortfalls to the Supplemental Interest Account as rights and
obligations in a separate limited recourse notional principal contract between
the Class I-CE Certificateholders and of Holders of each such Class.
The Supplemental Interest Account shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Group I Trust REMIC.
Furthermore, the Holders of the Class I-CE Certificates shall be the beneficial
owners of the Supplemental Interest Account for all federal income tax purposes,
and shall be taxable on all income earned thereon, and any amounts reimbursed
from the Group I Upper Tier REMIC to the Supplemental Interest Account shall be
treated as having been distributed to the Holders of the Class I-CE
Certificates.
In the event the Group I Swap Provider does not deliver the Delivery
Amount (as defined in the Group I Interest Rate Swap Agreement) to the Trustee,
the Trustee shall provide notice of such failure to the Group I Swap Provider
within one Business Day of such failure.
With respect to the failure of the Group I Swap Provider to perform
any of its obligations under the Group I Interest Rate Swap Agreement, the
breach by the Group I Swap Provider of any of its representations and warranties
made pursuant to the Group I Interest Rate Swap Agreement, or the termination of
the Group I Interest Rate Swap Agreement, the Trustee shall send any notices and
make any demands, on behalf of the Trust as are required under the Group I
Interest Rate Swap Agreement.
The Depositor shall cause the replacement Group I Swap Provider to
provide a copy of the replacement Group I Interest Rate Swap Agreement to the
Trustee.
On the Closing Date, the Trustee pursuant to the Group I Interest
Rate Swap Agreement shall open and maintain in its name, a separate non-interest
bearing trust account for the benefit of the holders of the Group I Certificates
(the "Posted Collateral Account") as a part of the Trust Fund. The Posted
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 moneys, including, without limitation, other moneys of the Trustee held
pursuant to this Agreement. Funds in the Posted Collateral Account shall be
invested at the direction of the Group I Swap Provider as provided in the Group
I Interest Rate Swap Agreement and the Group I Swap Provider shall be
responsible for all losses incurred in connection with investments thereof. In
no event shall the Trustee have any liability or responsibility for the
selection of investments and any losses incurred thereon, and shall have no
obligation to invest or reinvest any funds in the absence of timely written
direction.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class I-CE
Certificates in the name of the Depositor or its designee.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days prior to the related Record
Date or (y) by check mailed by first class mail to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In determining whether a transfer is being made pursuant to an effective
registration statement, the Trustee shall be entitled to rely solely upon a
written notice to such effect from the Depositor. Except with respect to (i) the
transfer of the Class I-CE or the Residual Certificates to the Depositor or an
Affiliate of the Depositor, (ii) the transfer of the Class I-CE Certificates to
the NIM Issuer or the NIM Trustee, or (iii) a transfer of the Class I-CE
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, in the event that a transfer of a Private
Certificate which is a Physical Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer shall certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit H (the "Transferor
Certificate") and either (i) there shall be delivered to the Trustee a letter in
substantially the form of Exhibit I (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made without registration under the Securities
Act. In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. As directed by the
Depositor, the Trustee shall provide to any Holder of a Private Certificate and
any prospective transferee designated by any such Holder, information regarding
the related Certificates and the Mortgage Loans and such other information as
shall be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Depositor shall cooperate with the Trustee and the applicable Servicer
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Trustee such information regarding the Certificates,
the Mortgage Loans and other matters regarding the Trust Fund as the Depositor
shall reasonably determine to meet its obligation under the preceding sentence.
Each Holder of a Private Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee, the applicable Servicer and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
Except with respect to (i) the transfer of Class I-CE Certificates
or Residual Certificates to the Depositor or an Affiliate of the Depositor, (ii)
the transfer of Class I-CE Certificates to the NIM Issuer or the NIM Trustee, or
(iii) a transfer of Class I-CE Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee (in the
event such Certificate is a Private Certificate, such requirement is satisfied
only by the Trustee's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such transfer, or
(ii) in the case of an ERISA-Restricted Certificate other than a Residual
Certificate that has been the subject of an ERISA-Qualifying Underwriting, and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate presented for registration in the name of an
employee benefit plan subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan or
any other Person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee, which Opinion of Counsel shall not be an expense of the Depositor, the
Trustee, the Servicers, the Custodian or the Trust Fund, addressed to the
Trustee, to the effect that the purchase or holding of such ERISA-Restricted
Certificate will not constitute or result in a non-exempt prohibited transaction
within the meaning of ERISA, Section 4975 of the Code or any Similar Law and
will not subject the Depositor, the Trustee, the Custodian or the Servicers to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Physical Certificate, in the event
the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the Trustee
by the transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. Notwithstanding anything else to the contrary
herein, (a) any purported transfer of an ERISA-Restricted Certificate, other
than a Residual Certificate, to or on behalf of an employee benefit plan subject
to ERISA, the Code or Similar Law without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect and (b) any purported transfer of a Residual Certificate to a
transferee that does not make the representation in clause (i) above shall be
void and of no effect.
None of the Residual Certificates may be sold to any employee
benefit plan subject to Title I of ERISA, any plan subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any Person investing on
behalf or with plan assets of such plan.
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 Certificate that is in fact
not permitted by this Section 5.02(b) 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.
As long as the Group I Interest Rate Swap Agreement is in effect,
each beneficial owner of a Group I Certificate other than an ERISA-Restricted
Certificate of such Group, or any interest therein, shall be deemed to have
represented that either (i) it is not a Plan or (ii) the acquisition and holding
of the Certificate are eligible for the exemptive relief available under at
least one of (i) Department of Labor Prohibited Transaction Class Exemption
("PTCE") 84-14 (for transactions by independent "qualified professional asset
managers"), (ii) PTCE 91-38 (for transactions by bank collective investment
funds), (iii) XXXX 00-0 (for transactions by insurance company pooled separate
accounts), (iv) PTCE 95-60 (for transactions by insurance company general
accounts) or (v) PTCE 96-23 (for transactions effected by "in-house asset
managers") or similar exemption under similar law.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) Other than in the case of the Depositor or any Affiliate of the
Depositor that is a U.S. Person, no Ownership Interest in a Residual
Certificate may be registered on the Closing Date or thereafter
transferred, and the Trustee shall not register the Transfer of any
Residual Certificate unless, in addition to the certificates required to
be delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer Affidavit") of
the initial owner or the proposed transferee in the form attached hereto
as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is a
Non-Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such 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 Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact a Non-Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became a Non-Permitted Transferee, all
payments made on such Residual 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 Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is a Non-Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Custodian
or the Servicers, to the effect that the elimination of such restrictions will
not cause any Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are Outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is a Non-Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is a Non-Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Depositor or the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Trustee with an adequate inventory
of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the 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;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee, duly
executed by the Certificateholder or his attorney duly authorized in writing
(with copies directly (other than with respect to a Residual Certificate) to the
Group I Swap Provider). The Trustee shall forward any such IRS Form (other than
with respect to a Residual Certificate) received to the Group I Swap Provider.
Each Private Certificateholder by its purchase of a Certificate is deemed to
consent to any such IRS Form being so forwarded. The Trustee shall be required
to forward any tax certification received by it to the Group I Swap Provider at
the last known address provided to it, and, subject to Article VIII hereof,
shall not be liable for the receipt of such tax certification by the Group I
Swap Provider, nor any action taken or not taken by the Group I Swap Provider
with respect to such tax certification. Upon the request of the Group I Swap
Provider, the Trustee shall forward the name and address and Percentage Interest
held in the Private Certificates for each Private Certificateholder to the Group
I Swap Provider at the last known address provided to it. The Trustee shall have
no duty to take any action to correct any misstatement or omission in any tax
certification provided to it and forwarded to the Group I Swap Provider;
provided however, if the Trustee has actual knowledge that a tax certificate or
name and address information provided to it by a Private Certificateholder
contains a misstatement or omission (including by reason of the Group I Swap
Provider informing it of the misstatement or omission), it shall notify the
Group I Swap Provider of the misstatement or omission, and when it receives a
corrected form or name and address information from the Holder of the Private
Certificate it shall forward the corrected form and/or name and address
information to the Group I Swap Provider.
(g) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Trustee in accordance with its customary practice. No service charge
shall be made for any registration of transfer or exchange of Private
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor and the Trustee such
security or indemnity as may be required by them to hold each of them harmless,
then, in the absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee 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) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor and
any agent of the Depositor or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and the Trustee, the Depositor, nor any agent of the Depositor or
the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or applicable Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the receipt
of such request, provide the Depositor, the applicable Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange. The Trustee initially designates its offices located at DB Services
Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
Transfer Unit. The Trustee shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
under the laws of the United States or under the laws of one of the states
thereof and will each obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee, Affiliate or agent of the
Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates or any other unanticipated
or extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund and the Depositor and the
Trustee, if applicable, shall be entitled to be reimbursed therefor out of the
Distribution Account.
Section 6.04 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor, which shall be deposited in the Distribution Account, shall be 100% of
the unpaid principal balance of such Mortgage Loan, plus all related accrued and
unpaid interest, and the amount of any unreimbursed Servicing Advances made by
the applicable Servicer related to the applicable Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
the applicable Servicing Agreement shall occur with respect to the related
Servicer then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights in the related
Loan Group the Trustee shall, by notice in writing to such Servicer (with a copy
to each Rating Agency), terminate all of the rights and obligations of such
Servicer under such Servicing Agreement and in and to the Mortgage Loans
serviced by such Servicer and the proceeds thereof. The Holders of Certificates
evidencing at least 66% of the Voting Rights of Certificates in such Loan Group
affected by an Event of Default may waive such Event of Default; provided,
however, that (a) an Event of Default with respect to a Servicer's obligation to
make Monthly Advances may be waived only by all of the holders of the
Certificates affected by such Event of Default and (b) no such waiver is
permitted that would materially adversely affect any non-consenting
Certificateholder. On and after the receipt by a Servicer of such written notice
of termination, all authority and power of a Servicer hereunder, whether with
respect to the applicable Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee. The Trustee is hereby authorized and empowered to execute
and deliver, on behalf of each 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 applicable Mortgage Loans and related documents, or otherwise.
Section 7.02 Trustee to Act; Appointment of Successor. Within 90
days after the Trustee gives, and a Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 7.03, and subject to the rights of the Trustee to appoint a
successor Servicer pursuant to this Section 7.02, be the successor to such
Servicer in its capacity as servicer under the related Servicing Agreement or
comparable new agreement with the successor and the transactions set forth or
provided for herein and in such Servicing Agreement and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on such
Servicer by the terms and provisions thereof and applicable law including the
obligation to make Monthly Advances or Servicing Advances pursuant to such
Servicing Agreement (it being understood and agreed that if such Servicer fails
to make an Advance, the Trustee as successor Servicer shall do so unless a
determination has been made that such Advance would constitute a Nonrecoverable
Monthly Advance or a Nonrecoverable Servicing Advance). As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans that such Servicer would have been entitled to charge to the Collection
Account if such Servicer had continued to act under the related Servicing
Agreement including, if such Servicer was receiving the Servicing Fee at the
Servicing Fee Rate set forth in such Servicing Agreement (as set forth in the
Mortgage Loan Schedule with respect to the related Mortgage Loans), such
Servicing Fee and the income on investments or gain related to the Collection
Account. It is understood and acknowledged by the parties hereto that there will
be a period of transition before the transfer of servicing obligations is fully
effective. Notwithstanding the foregoing, the Trustee will have a period (not to
exceed 90 days) to complete the transfer of all servicing data and correct or
manipulate such servicing data as may be required by the Trustee to correct any
errors or insufficiencies in the servicing data or otherwise enable the Trustee
to service the Mortgage Loans in accordance with accepted servicing practices.
Notwithstanding the foregoing, the Trustee may, if it shall be
unwilling to so act, or shall, if it is prohibited by applicable law from making
Monthly Advances and Servicing Advances pursuant to a servicing agreement, or if
it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights in the related
Loan Group, appoint, or petition a court of competent jurisdiction to appoint,
any established mortgage loan servicing institution the appointment of which
does not adversely affect the then current rating of the Certificates by each
Rating Agency, as the successor to related Servicer under such Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer. No such appointment of a successor to a
Servicer hereunder shall be effective until the Depositor shall have consented
thereto. Any successor to a Servicer shall be an institution which is a Xxxxxx
Xxx and Xxxxxxx Mac approved seller/servicer in good standing, which has a net
worth of at least $25,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such terminated Servicer, (other than liabilities of such
terminated Servicer incurred prior to termination of such Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement;
provided, that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to a Servicer hereunder, the Trustee, unless
the Trustee is prohibited by law from so acting, shall, subject to this Section
7.02, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it, the
Depositor and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee Rate and amounts paid to
such Servicer from investments. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any other successor to a Servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor Servicer shall be responsible for giving notice to the
related Mortgagors of such change of Servicer, in accordance with applicable
federal and state law, and shall, during the term of its service as Servicer,
maintain in force the policy or policies that such Servicer is required to
maintain pursuant to the related Servicing Agreement. In no event shall the
Trustee be responsible for paying the costs and expenses of transferring the
servicing of the Mortgage Loans.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Promptly after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE, THE CUSTODIAN, VARIOUS TAX MATTERS,
SERVICING REPORTS AND PERIODIC FILINGS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, 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.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
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.
Unless an Event of Default known to the Trustee has occurred and is
continuing:
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believes in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of all of the Certificates relating 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.
The Trustee shall be permitted to utilize one or more Subcontractors
for the performance of certain of its obligations under this Agreement, provided
that the Trustee complies with Section 8.16. The Trustee shall indemnify the
Depositor and the Sponsors and any director, officer, employee or agent of the
Depositor or the Sponsors 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 in any way related to the failure of the Trustee to
perform any of its obligations under Section 8.16, including without limitation
any failure by the Trustee to identify pursuant to Section 8.16 any
Subcontractor that is a Servicing Function Participant. This indemnity shall
survive the termination of this Agreement or the earlier resignation or removal
of the Trustee.
Section 8.02 [Reserved].
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
opinions (including an Opinion of Counsel), certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any 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 liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and with respect to the investment of funds in the Distribution Account
during the Trustee Float Period).
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Event of Default, the Trustee shall not be deemed to have
knowledge of an Event of Default, until a Responsible Officer of the Trustee
shall have received written notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) 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;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder;
(l) notwithstanding anything to the contrary in the applicable
Servicing Agreement, the Trustee shall not consent to the related Servicer's
request of assigning the Servicing Agreement or the servicing rights thereunder
to any other party; and
(m) should the Trustee deem the nature of any action required on its
part to be unclear, the Trustee may require prior to such action that it be
provided by the Depositor with reasonable further instructions.
Section 8.04 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. Neither the Trustee nor the Custodian
makes any representations as to the validity or sufficiency of this Agreement or
of the Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee, the Trustee's execution and authentication of the
Certificates. The Trustee shall not be accountable for the use or application by
the Depositor or the Servicers of any funds paid to the Depositor or the
Servicers in respect of the Mortgage Loans or deposited in or withdrawn from the
Collection Account by the Depositor or the Servicers.
The Trustee shall have no responsibility for filing or recording 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 (unless the Trustee shall have become a successor
Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's and Custodian's Fees and Expenses. As
compensation for its activities under this Agreement, the Trustee may withdraw
from the Distribution Account on each Distribution Date any interest or
investment income earned on funds deposited in the Distribution Account during
the Trustee Float Period. With respect to each Distribution Date, the Trustee
shall pay the Custodian the Custodian Fee out of the interest or investment
income earned on funds deposited in the Distribution Account during the Trustee
Float Period as described in the previous sentence. The obligations of the
Trustee under this Section 8.06 shall survive the resignation, termination or
removal of the Custodian for payment of the Custodian Fee accrued prior to such
termination, resignation or removal. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Trust Fund and
held harmless against any loss, liability, or expense (including reasonable
attorneys' fees) resulting from any error in any tax or information return
prepared by the Servicers or incurred in connection with any claim or legal
action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of a
Servicer's obligations in connection with the related Servicing Agreement for
which that Servicer has completed performance of its obligation to indemnify the
Trustee pursuant to such Servicing Agreement, (ii) resulting from any breach of
an Original Loan Seller's obligations in connection with the related Sale
Agreement for which it has completed performance of its obligation to indemnify
the Trustee pursuant to such Sale Agreement, or (iii) incurred because of
willful misfeasance, bad faith, or negligence in the performance of any of the
Trustee's duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee under
this Agreement. Without limiting the foregoing, except as otherwise agreed upon
in writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee's negligence, bad faith, or
willful misfeasance, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee,
Registrar or paying agent under this Agreement or for any other routine expenses
incurred by the Trustee; provided, however, no expense shall be reimbursed
hereunder if it would not constitute an "unanticipated expense incurred by the
REMIC" within the meaning of the REMIC Provisions.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or 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 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its Affiliates or with
the applicable Servicer and its Affiliates; provided, however, that such entity
cannot be an Affiliate of the Depositor or of the applicable Servicer other than
the Trustee in its role as successor to the applicable Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicers, the Custodian and
each Rating Agency not less than 60 days before the date specified in such
notice, when, subject to Section 8.09, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.09 meeting the
qualifications set forth in Section 8.07. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights of all of the Certificates may at any time remove the Trustee and appoint
a successor trustee by written instrument or instruments, in triplicate, signed
by such Holders or their attorneys in fact duly authorized, one complete set of
which shall be delivered to the Trustee so removed and one complete set to the
successor so appointed. The successor trustee shall notify each Rating Agency of
any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
of such succession or appointment and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 8.14(g), 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 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the applicable Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the applicable Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
applicable Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. 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 and indemnity to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the applicable Servicer and the Depositor.
Any separate trustee or co-trustee 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 or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC and that in such
capacity it shall:
(a) prepare, sign and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare, sign and
file with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each Trust REMIC containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish to Certificateholders the schedules, statements or
information at such times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all Trust REMICs and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) on or prior to the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for the grantor trust and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(d) deliver or cause to be delivered the federal taxpayer
identification number of the grantor trust on a correct, complete and duly
executed IRS Form W-9 of the grantor trust to the Group I Swap Provider promptly
upon receipt of such number after applying for it pursuant to 8.12(c) above and,
in any event, no later than the first Payment Date under the Group I Interest
Rate Swap Agreement, and, if requested by the Group I Swap Provider, an
applicable IRS Form W-8IMY if permitted or required under applicable law;
(e) make an election that each Trust REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(f) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(g) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is a "Non-Permitted
Transferee", or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(h) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(i) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(j) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(k) cause federal, state or local income tax or information returns
to be signed by the Trustee or, if required by applicable tax law, such other
Person as may be required to sign such returns by the Code or state or local
laws, regulations or rules;
(l) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(m) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it at the expense of the Trust, which expense shall be paid or
reimbursed to the Trustee.
The Holder of the largest Percentage Interest of the Class I-R
Certificates shall act as Tax Matters Person for each Group I Trust REMIC and
the Holder of the largest Percentage Interest of the Class II-AR Certificates
shall act as Tax Matters Person for each Group II Trust REMIC, in each case
within the meaning of Treasury Regulations Section 1.860F-4(d), and the Trustee
is hereby designated as agent of such Certificateholder for such purpose (or if
the Trustee is not so permitted, such Holder shall be the Tax Matters Person in
accordance with the REMIC Provisions). In such capacity, the Trustee shall, as
and when necessary and appropriate, represent each Trust REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of each Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any Trust REMIC, and otherwise act on behalf of each Trust REMIC in
relation to any tax matter or controversy involving it.
The Trustee shall treat the rights of the Class I-CE
Certificateholders to receive amounts in the Excess Reserve Fund Account and the
Supplemental Interest Account (subject, other than in the case of the Class I-CE
Certificates, to the obligation to pay Basis Risk Carry Forward Amounts and,
without duplication, Group I Upper Tier Carry Forward Amounts) and the rights of
the Group I LIBOR Certificateholders to receive Basis Risk Carry Forward Amounts
and, without duplication, Group I Upper Tier Carry Forward Amounts as the
beneficial ownership of interests in a grantor trust, and not as an obligation
of any Group I Trust REMIC created hereunder, for federal income tax purposes.
The Trustee shall file or cause to be filed with the IRS together
with Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Class I-CE Certificateholders, the Group I LIBOR
Certificateholders and the Group II Offered Certificateholders the respective
amounts described above that are received, in the time or times and in the
manner required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class of
Group I Certificates of the right to receive Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account and Basis Risk Carry Forward Amounts or,
without duplication, Group I Upper Tier Carry Forward Amounts from the
Supplemental Interest Account. Unless otherwise advised by the Depositor, for
federal income tax purposes, the Trustee is hereby directed to assign a value of
zero to the right of each Holder allocating the purchase price of an initial
LIBOR Certificateholder between such right and the related Upper Tier Regular
Interest. Thereafter, the Depositor shall provide to the Trustee promptly upon
written request therefor any additional information or data that the Trustee
may, from time to time, reasonably request to enable the Trustee to perform its
duties under this Agreement; provided, however, that the Depositor shall not be
required to provide any information regarding the Mortgage Loans after the
Closing Date or any information that the applicable Servicer is required to
provide to the Trustee. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims, or expenses of the Trustee arising from
any errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, pursuant to this paragraph, accurate information or data
to the Trustee on a timely basis.
The Trustee shall not (i) cause the creation of any interests in any
Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement) or
(iii) otherwise knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any Trust REMIC as a REMIC or (ii)
result in the imposition of a tax upon any Trust REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a Trust REMIC set
forth in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Trustee receives an Opinion of Counsel (at the expense of
the Trust Fund, but in no event at the expense of the Trustee), to the effect
that the contemplated action will not, with respect to the Trust Fund, result in
the imposition of a tax upon any Trust REMIC created hereunder or endanger the
status of any Trust REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Group I Pooling-Tier REMIC-A or the Group II
Pooling-Tier REMIC, as defined in Section 860G(c) of the Code, on any
contribution to any Trust REMIC after the Startup Day pursuant to Section
860G(d) of the Code, or any other tax is imposed, including any minimum tax
imposed on any Trust REMIC pursuant to Sections 23153 and 24874 of the
California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Trustee if such tax arises out of or
results from negligence of the Trustee in the performance of any of its
obligations under this Agreement, (ii) the related Servicer, in the case of any
such minimum tax, and otherwise if such tax arises out of or results from a
breach by such Servicer of any of its obligations under the applicable Servicing
Agreement, (iii) the applicable Original Loan Seller if such tax arises out of
or results from such Original Loan Seller's obligation to repurchase a Mortgage
Loan pursuant to the applicable Sale Agreement or (iv) in all other cases, or if
the Trustee, the applicable Servicer or the applicable Original Loan Seller
fails to honor its obligations under the preceding clause (i), (ii), or (iii),
any such tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.01(a) and Section 4.01(b).
For as long as each Trust REMIC shall exist, the Trustee shall act
as specifically required herein, and the Trustee shall comply with any
directions of the Depositor stating that such directions are being given to
assure such continuing treatment. In particular, the Trustee shall not (a) sell
or authorize the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to any Trust REMIC after the Startup Day without receipt
of an Opinion of Counsel that such action described in clause (a) or (b) will
not result in the imposition of a tax on any Trust REMIC or cause any Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Section 8.13 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 15th of each calendar year commencing in
2008, the Trustee and Custodian shall deliver, and the Trustee and the Custodian
shall cause each Subcontractor utilized by the Trustee or the Custodian, as
applicable, and determined by the Trustee or the Custodian, as applicable,
pursuant to Section 8.16 to be "participating in a servicing function" within
the meaning of Item 1122 of Regulation AB (in each case, a "Servicing Function
Participant"), to deliver, each at its own expense, to the Depositor, a report
on an assessment of compliance with the Servicing Criteria applicable to it that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Servicing Criteria applicable to it, (B) a statement that
such party used the Servicing Criteria to assess compliance with the applicable
Servicing Criteria, (C) such party's assessment of compliance with the
applicable Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
8.14, including, if there has been any material instance of noncompliance with
the applicable 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 Person's assessment of
compliance with the applicable Servicing Criteria as of and for such period.
Each such assessment of compliance report shall be addressed to the Depositor
and signed by an authorized officer of such Person, and shall address each of
the applicable Servicing Criteria set forth on Exhibit P hereto, or as set forth
in the notification furnished to the Depositor pursuant to Section 8.14(c). The
Trustee and Custodian each hereby acknowledges and agrees that its assessments
of compliance will cover the items identified on Exhibit P hereto as being
covered by the Trustee and Custodian, as applicable. The parties to this
Agreement acknowledge that where a particular Servicing Criteria has multiple
components, each party's assessment of compliance and related attestation of
compliance) will relate only to those components that are applicable to such
party. Promptly after receipt of each such report on assessment of compliance,
the Depositor shall review each such report and, if applicable, consult with the
Trustee or Custodian, as applicable, as to the nature of any material instance
of noncompliance with the Servicing Criteria applicable to it (and each
Servicing Function Participant engaged or utilized by the Trustee or Custodian,
as applicable), as the case may be. Neither the Trustee nor the Custodian shall
be required to cause the delivery of any such assessments by March 15th in any
given year so long as Form 10-K is not required to be filed in respect of the
Trust for the preceding calendar year, as notified in writing by the Depositor.
(b) Not later than March 15th of each calendar year commencing in
2008, the Trustee and Custodian shall cause, and the Trustee and Custodian shall
cause each Servicing Function Participant utilized by such Person, to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to such party) and that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Depositor,
with a copy to the Rating Agencies, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Person,
which includes an assertion that such Person has complied with the Servicing
Criteria applicable to it pursuant to Section 8.13(a) and (ii) on the basis of
an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, that attests to and
reports on such Person's assessment of compliance with the Servicing Criteria
applicable to it. 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. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language. Neither the Trustee nor the
Custodian shall not be required to cause the delivery of any such attestation
required by this paragraph in any given year so long as Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year, as
notified in writing by the Depositor.
(c) No later than February 1 of each fiscal year, commencing in
2008, the Trustee and Custodian shall notify the Depositor as to the name of
each Servicing Function Participant utilized by it during the preceding calendar
year, and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant in each case, to the extent of any change from the prior
year's notice, if any. When the Trustee or Custodian submits its assessment
pursuant to Section 8.13(a), the Trustee or Custodian will also at such time
include the assessment (and related attestation pursuant to Section 8.13(b)) of
each Servicing Function Participant utilized by it.
Section 8.14 Periodic Filings. (a) The Trustee and the Custodian
shall reasonably cooperate with the Depositor in connection with the reporting
requirements of the Trust under the Exchange Act. The Trustee shall prepare for
execution by the Depositor any Forms 10-D and 10-K and certain Form 8-K's (not
to include any Form 8-K related to the filing of this Agreement and any
amendments thereto), required by the Exchange Act and the rules and regulations
of the Commission thereunder, in order to permit the timely filing thereof, and
the Trustee shall file (via the Commission's Electronic Data Gathering and
Retrieval System, or XXXXX) such Forms executed by the Depositor.
(b) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Trustee shall prepare and file
on behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Trustee shall file each Form 10-D
with a copy of the related Monthly Statement attached thereto. Any disclosure in
addition to the Monthly Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be reported to the Depositor and the
Trustee by the parties set forth on Exhibit Q and directed and approved by the
Depositor pursuant to the following paragraph. The Trustee will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-D Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit Q hereto, within 5 calendar days after the
related Distribution Date, the parties, to the extent described on Exhibit Q,
shall be required to provide to the Trustee and the Depositor, to the extent
known by such applicable parties, any Additional Form 10-D Disclosure, the form
and substance of the Additional Form 10-D Disclosure described on Exhibit T
applicable to such party (and shall include with such Additional Form 10-D
Disclosure an Additional Disclosure Notification in the form attached hereto as
Exhibit T (such form, the "Additional Disclosure Notification")), and the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit Q (other than with respect to the Trustee) of
their duties under this paragraph or proactively solicit or procure from such
parties any Additional Forma 10-D Disclosure information; provided, however, the
Trustee shall cooperate with the Depositor in a reasonable manner in order for
the Depositor to comply with its reporting obligations under the Exchange Act as
set forth in Section 8.14(a). The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph. The Trustee shall compile all such information provided to it in a
Form 10-D prepared by it.
After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for approval and
execution. No later than 2 Business Days prior to the 15th calendar day after
the related Distribution Date, an officer of the Depositor 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 Section
8.14(f)(ii). Form 10-D requires the Depositor to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the Depositor was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
instructs the Trustee, with respect to each Form 10-D, to check "yes" for each
item unless the Trustee has received timely prior written notice from the
Depositor that the answer should be "no" for an item. The Depositor shall notify
the Trustee in writing, as soon as reasonably practicable but no later than 5
Business Days prior to the 15th calendar day after the related Distribution Date
with respect to the filing of a report on Form 10-D, if the answer to the
questions should be "no." The Trustee shall be entitled to rely on such
instructions in preparing and/or filing any such Form 10-D. The Depositor
acknowledges that the performance by the Trustee of its duties under this
Section 8.14(b) related to the timely preparation and filing of Form 10-D is
contingent upon the Servicers (including Subcontractors and Servicing Function
Participants), the Depositor and the Custodian observing all applicable
deadlines in the performance of their duties under this Section 8.14(b). 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
receive, on a timely basis, any information from any party hereto (other than
the Trustee or any Subcontractor utilized by the Trustee) needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own
negligence, bad faith or willful misconduct.
(c) On or before 90 days after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline"), commencing in March 2008, the Trustee shall prepare and file
on behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement, (i) an annual compliance statement for
each Servicer and each Subservicer engaged by such Servicer, as described under
the applicable Servicing Agreement, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for the Trustee, each Servicer, the
Custodian, each Subservicer engaged by the Servicers and each Servicing Function
Participant utilized by the Servicers, the Custodian or the Trustee, as
described under Section 8.13 or the applicable Servicing Agreement, as the case
may be, and (B) if any such report on assessment of compliance with servicing
criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or such report on assessment of
compliance with servicing criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for the Trustee, each Servicer, the Custodian, each
Subservicer engaged by the Servicers and each Servicing Function Participant
utilized by the Servicers, the Custodian or the Trustee, as described under
Section 8.13, and (B) if any registered public accounting firm attestation
report identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a certification in the form attached hereto as Exhibit J,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Sarbanes Certification"), which shall be
signed by the senior officer of the Depositor in charge of securitization. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall be
reported to the Depositor and the Trustee by the parties set forth on Exhibit R
and directed and approved by the Depositor pursuant to the following paragraph.
The Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit R hereto, no later than March 1 of each year
(or, in the case of applicable Servicer, March 5th of each year) that the Trust
is subject to the Exchange Act reporting requirements, commencing in 2008, the
parties, to the extent described on Exhibit R, shall be required to provide to
the Trustee and the Depositor, to the extent known by such applicable parties,
any Additional Form 10-K Disclosure, the form and substance of the Additional
Form 10-K Disclosure described on Exhibit R applicable to such party (and shall
include with such Additional Form 10-K Disclosure an Additional Disclosure
Notification in the form attached hereto as Exhibit T), and the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Trustee has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit R (other than with respect to the Trustee) of their
duties under this paragraph or proactively solicit from such parties any
Additional Form 10-K Disclosure information; provided, however, the Trustee
shall cooperate with the Depositor in a reasonable manner in order for the
Depositor to comply with its reporting obligations under the Exchange Act as set
forth in Section 8.14(a). The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph. The Trustee shall compile all such information provided to it in a
Form 10-K prepared by it.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for approval and
execution. Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
instructs the Trustee, with respect to each Form 10-K, to check "yes" for each
item unless the Trustee has received timely prior written notice from the
Depositor that the answer should be "no" for an item. The Depositor shall notify
the Trustee in writing by March 1st if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such instructions in preparing
and/or filing any such Form 10-K. No later than 5:00 p.m. EST on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the
Depositor 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 Section 8.14(f)(ii). The Depositor acknowledges that the performance by
the Trustee of its duties under this Section 8.14(c) related to the timely
preparation and filing of Form 10-K is contingent upon the Depositor observing
all applicable deadlines in the performance of its duties under this Section
8.14(c) and Section 8.14(d) and is contingent upon each Servicer (and any
Subservicer or Servicing Function Participant engaged by such Servicer)
observing all applicable deadlines in the performance of its duties under the
applicable Servicing Agreement. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Trustee's inability or failure to receive, on a timely basis, any
information from any party hereto or any Subservicer or Servicing Function
Participant engaged by any such party hereto (other than the Trustee or any
Servicing Function Participant utilized by the Trustee) needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(d) In connection with the execution of a Sarbanes Certification,
the Trustee shall sign a certification (in the form attached hereto as Exhibit
K, with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission) for the benefit of the Depositor and its
officers, directors and Affiliates. Each such certification shall be delivered
to the Depositor no later than March 10th of each year (or if such day is not a
Business Day, the immediately preceding Business Day) and the Depositor shall
deliver the Sarbanes Certification no later than the time set forth for the
delivery to the Trustee of the signed Form 10-K pursuant to Section 8.14(c) for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Trustee has actual knowledge of information material to the
Sarbanes Certification, that party shall promptly notify the Depositor. In
addition, the Trustee shall indemnify and hold harmless the Depositor and the
Sponsors and their officers, directors, employees, agents and Affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any breach of the Trustee's obligations under this
Section 8.14(d) or the Trustee's material misstatement, material omission,
negligence, bad faith or willful misconduct in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any indemnified party, then the Trustee agrees in connection with a
breach of the Trustee's obligations under this Section 8.14(d) or the Trustee's
material misstatement, material omission, negligence, bad faith or willful
misconduct in connection therewith that it shall contribute to the amount paid
or payable by the Depositor and the Sponsors as a result of the losses, claims,
damages or liabilities of the Depositor and the Sponsors in such proportion as
is appropriate to reflect the relative fault of the Depositor and the Sponsor on
the one hand and the Trustee on the other. The obligations of the Trustee under
this Section 8.14(d) shall apply to the Trustee whether or not such Trustee is
acting as Trustee at the time such certification is required to be delivered.
The indemnification and contribution obligations set forth in this Section
8.14(d) shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
(e) Upon any filing of Form 10-D, Form 10-K or Form 8-K with the
Commission, the Trustee shall promptly deliver to the Depositor a copy of each
such executed report, statement or information.
(f) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 of the first year in which the Trustee is able to do so
under applicable law, the Trustee shall prepare and file a Form 15 Suspension
Notification with respect to the Trust, with a copy to the Depositor. At the
start of any fiscal year, including any fiscal year after the filing of a Form
15 Suspension Notification, if the number of Holders of the Offered Certificates
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Form 10-K, 10-D and 8-K
as required pursuant to this Section 8.14 and the parties hereto shall again
have the obligations set forth in this Section 8.14.
(ii) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed pursuant to 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, the Trustee will
promptly notify the Depositor. In the case of Form 10-D and 10-K, the
Depositor and Trustee will thereupon prepare and file, and the other
parties shall cooperate in connection with such preparation and filing, a
Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the Trustee will, upon
receipt of all required Form 8-K Disclosure Information and, upon the
approval and direction of the Depositor, include such disclosure
information on the next succeeding Form 10-D. In the event that any
previously filed Form 8-K, 10-D or 10-K needs to be amended, in connection
with any Additional Form 10-D Disclosure (other than, in the case of Form
10-D, for the purpose of restating any Monthly Statement), Additional Form
10-K Disclosure or Form 8-K Disclosure Information, the Trustee will
notify the Depositor and such other parties to the transaction as are
affected by such amendment, and the Depositor and the Trustee shall
prepare and file, and such other parties will cooperate in connection with
such preparation and filing, any necessary Form 8-K/A, 10-D/A or 10-K/A.
Any Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed
by an officer or a senior officer of the Depositor. The Depositor
acknowledges that the performance by the Trustee of its duties under this
Section 8.14(f) related to the timely preparation and filing of Form 15, a
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent upon
the Depositor observing all applicable deadlines in the performance of its
duties under this Section 8.14 and is contingent upon each Servicer
observing all applicable deadlines in the performance of its duties under
the applicable Servicing Agreement. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file 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 party hereto or any Subservicer or
any Servicing Function Participant engaged by any such party hereto (other
than the Trustee or any Servicing Function Participant utilized by the
Trustee) needed to prepare, arrange for execution or file such Form 15,
Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
(g) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Trustee shall prepare and file on behalf
of the Trust any Form 8-K, as required by the Exchange Act, provided that the
Depositor shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (other than the initial
Form 8-K) ("Form 8-K Disclosure Information") shall be reported to the Depositor
and the Trustee by the parties set forth on Exhibit R and directed and approved
by the Depositor pursuant to the following paragraph. The Trustee will have no
duty or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
As set forth on Exhibit S hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business (New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event the parties, to the extent described on Exhibit S, shall be
required to provide to the Trustee and the Depositor, to the extent known by
such applicable parties, any Form 8-K Disclosure Information, the form and
substance of the Form 8-K Disclosure Information described on Exhibit S
applicable to such party (and shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit T, and the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit S (other than with
respect to the Trustee) of their duties under this paragraph or proactively
solicit or procure from such parties any Form 8-K Disclosure Information;
provided, however, the Trustee shall cooperate with the Depositor in a
reasonable manner in order for the Depositor to comply with its reporting
obligations under the Exchange Act as set forth in Section 8.14(a). The
Depositor will be responsible for any reasonable fees and expenses assessed or
incurred by the Trustee in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph. The Trustee shall compile
all such information provided to it in a Form 8-K prepared by it.
After preparing the Form 8-K, the Trustee shall no later than 12:00
noon (New York City time) on the 3rd Business Day after the Reportable Event but
in no case without having had notice for 24 hours forward electronically a draft
copy of the Form 8-K to the Depositor for review. No later than 12:00 noon (New
York City time) on the 4th Business Day after the Reportable Event, an officer
of the Depositor 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 Section 8.14(f)(ii). The Depositor acknowledges that the performance by
the Trustee of its duties under this Section 8.14(g) related to the timely
preparation, arrangement for execution and filing of Form 8-K is contingent upon
the Depositor observing all applicable deadlines in the performance of its
duties under this Section 8.14(g). The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 8-K, where such failure results
from the Trustee's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Trustee or any
Subcontractor utilized by the Trustee) needed to prepare, arrange for execution
or file such Form 8-K, not resulting from its own negligence, bad faith or
willful misconduct.
(h) The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or resulting from (i) the accuracy or inaccuracy
of any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K Disclosure Information (excluding any information therein provided by the
Trustee or any Subcontractor utilized by the Trustee) provided to the Trustee in
connection with the preparation of Forms 10-D, 10-K and 8-K pursuant to this
Section 8.14, or (ii) the failure of the Depositor to approve for filing any
Forms 10-D, 10-K and 8-K required to be prepared by the Trustee pursuant to this
Section 8.14, in either case, not resulting from the Trustee's own negligence,
bad faith or misconduct.
(i) Any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information required to be provided to the
Trustee shall be sent (by email at XXXxx.Xxxxxxxxxxxxx@xx.xxx in
XXXXX-compatible format, or in such other format as otherwise agreed upon by the
Trustee, the Depositor and the party providing such information. With respect to
any notice required to be delivered by the Trustee to the Depositor pursuant to
Section 8.14 of this Agreement, the Trustee may deliver such notice,
notwithstanding any contrary provision in Section 9.05, via facsimile to
000-000-0000 or telephonically by calling the General Counsel at 212-412-4000.
The signing party at the Depositor can be contacted at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Facsimile: (000) 000-0000, or
such other address as to which the Depositor has provided prior written notice
to the Trustee.
Section 8.15 Tax Classification of the Excess Reserve Fund Account,
the Supplemental Interest Account and the Group I Interest Rate Swap Agreement.
For federal income tax purposes, the Trustee shall treat the Excess Reserve Fund
Account, the Supplemental Interest Account and the Group I Interest Rate Swap
Agreement as beneficially owned by the holders of the Class I-CE Certificates
and shall treat such portion of the Trust Fund as part of a grantor trust,
within the meaning of subpart E, Part I of subchapter J of the Code.
The Trustee shall treat the rights that each Class of Group I LIBOR
Certificates has to receive payments of Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and, to the extent not paid from the Excess
Reserve Fund Account from the Supplemental Interest Account (including, without
duplication, Group I Upper Tier Carry Forward Amounts), and the obligation to
pay Class I-IO Shortfalls to the Supplemental Interest Account as rights and
obligations under a notional principal contract between the Class I-CE
Certificateholders and each such Class and beneficially owned by each such Class
through the grantor trust. Accordingly, (i) each Class of Group I LIBOR
Certificates will be comprised of two components - a Group I Upper Tier REMIC
Regular Interest and an interest in a notional principal contract, subject to
the obligation to pay Class I-IO Shortfalls, and (ii) the Class I-CE
Certificates will be comprised of the following components: two Group I Upper
Tier REMIC Regular Interests (the Class I-CE Interest and the Class I-IO
Interest), an interest in the Excess Reserve Fund Account, subject to the
obligation to pay Basis Risk Carry Forward Amounts, and ownership of the
Supplemental Interest Account, the Group I Interest Rate Swap Agreement and the
right to receive Class I-IO Shortfalls, subject to the obligation to pay Basis
Risk Carry Forward Amounts (including, without duplication, Group I Upper Tier
Carry Forward Amounts), Net Swap Payments and Swap Termination Payment. The
Trustee shall allocate the issue price for a Class of Certificates among the
respective components for purposes of determining the issue price of each Group
I Upper Tier REMIC Regular Interest based on information received from the
Depositor. Unless otherwise advised by the Depositor in writing, for federal
income tax purposes, the Trustee is hereby directed to assign a value of zero to
the right of each Holder of a Group I LIBOR Certificate to receive the related
Basis Risk Carry Forward Amount for purposes of allocating the purchase price of
an initial Group I LIBOR Certificateholder between such right and the related
Group I Upper Tier REMIC Regular Interest.
Holders of Group I LIBOR Certificates shall also be treated as
having agreed to pay, on each Distribution Date, to the Holders of the Class
I-CE Certificates an aggregate amount equal to the excess, if any, of (i) Net
Swap Payments and Swap Termination Payments (other than Defaulted Swap
Termination Payments) over (ii) the sum of amounts payable on the Class I-CE
Interest available for such payments and amounts payable on the Class I-IO
Interest (such excess, a "Class I-IO Shortfall"), first from interest and then
from principal distributable on the Group I LIBOR Certificates. A Class I-IO
Shortfall payable from interest collections shall be allocated pro rata among
such Group I LIBOR Certificates based on the amount of interest otherwise
payable to such Class of Group I LIBOR Certificates, and a Class I-IO Shortfall
payable from principal collections shall be allocated in reverse sequential
order beginning with the most subordinate Class of Group I LIBOR Certificates
then Outstanding.
Any payments of Class I-IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of Group I LIBOR
Certificates in respect of the corresponding Group I Upper Tier Regular Interest
and as having been paid by such Holders to the Holders of the Class I-CE
Certificates through the Supplemental Interest Account.
Section 8.16 Subcontractors
(a) Subject to the conditions set forth in this Section 8.16(a) and
Section 8.17(c), each of the Trustee and the Custodian is permitted to utilize
one or more Subcontractors to perform certain of its obligations hereunder. The
Trustee or the Custodian, as applicable, shall promptly upon request provide to
the Depositor and the Trustee a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by the Trustee or the Custodian, specifying, not later than the date
specified for delivery of the annual report on assessment of compliance set
forth in Section 8.13(a) (i) the identity of each such Subcontractor, if any,
that is "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, and (ii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (i) of this paragraph. As a condition to the utilization by
the Trustee or the Custodian of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Trustee or the Custodian, as applicable, shall cause any such
Subcontractor used by the Trustee or Custodian for the benefit of the Depositor
to comply with the provisions of Section 8.14 of this Agreement to the same
extent as if such Subcontractor were the Trustee or Custodian, as applicable.
The Trustee and Custodian shall be responsible for obtaining from each such
Subcontractor and delivering to the applicable Persons any assessment of
compliance report and related accountant's attestation required to be delivered
by such Subcontractor under Section 8.14, in each case as and when required to
be delivered.
Section 8.17 Custodial Responsibilities.
(a) The Custodian shall provide access to the Mortgage Loan
Documents in possession of the Custodian regarding the related Mortgage Loans
and REO Property and the servicing thereof to the Trustee, the
Certificateholders, the FDIC and the supervisory agents and examiners of the
FDIC, such access being afforded only upon two (2) Business Days' prior written
request and during normal business hours at the office of the Custodian. The
Custodian shall allow representatives of the above entities to photocopy any of
the records and documentation and shall provide equipment for that purpose at
the expense of the person requesting such access.
(b) The Custodian may resign from its obligations hereunder upon 60
days' prior written notice to the Trustee, the Depositor and the Servicers. Such
resignation shall take effect upon (i) the appointment of a successor Custodian
reasonably acceptable to the Depositor within such 60 day period; and (ii)
delivery of all Mortgage Loan Files to the successor Custodian. The Trustee
shall have the right, but not the obligation, to become the successor Custodian.
If no successor Custodian is appointed within 60 days after written notice of
the Custodian's resignation is received by the Trustee, the Custodian may
petition a court of competent jurisdiction to appoint a successor Custodian.
Upon such resignation and appointment of successor Custodian, the
Custodian shall, at the Custodian's expense, promptly transfer to the successor
Custodian, as directed in writing by the Trustee, all applicable Mortgage Files
being administered under this Agreement. Notwithstanding the foregoing, the
Trust Fund, not the Custodian, shall bear the costs relating to the transfer of
Mortgage Files if the Custodian shall resign with cause (including the
Custodian's resignation due to the failure of the Custodian to be paid all fees
and expenses due to the Custodian hereunder).
(c) For so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Custodian 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 the prior written consent of the
Depositor, in its sole discretion.
(d) The Custodian and any of its directors, officers, employees or
agents shall be indemnified by the Trust Fund and held harmless against any and
all loss, claim, damage, fee, fine, penalty, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to this Agreement or the performance of any of the Custodian's
duties under this Agreement other than any loss, liability, or expense directly
resulting from the willful misfeasance, bad faith, or negligence in the
performance of any of the Custodian's duties under this Agreement. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Custodian. Except as otherwise provided in this
Agreement or a separate letter agreement between the Depositor and the
Custodian, the Custodian shall not be entitled to payment or reimbursement for
any routine ongoing expenses incurred by the Custodian in the ordinary course of
its duties as Custodian under this Agreement or for any other expenses incurred
by the Custodian; provided, however, that no expense shall be reimbursed by the
Trust Fund under this Agreement if it would not constitute an "unanticipated
expense incurred by the REMIC" within the meaning of the REMIC Provisions.
(e) The Custodian shall indemnify the Depositor, the Sponsors, the
Trustee and any director, officer, employee, agent and affiliate of the
Depositor, the Sponsors or the Trustee and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonably and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them sustain directly resulting from (i) the failure of the
Custodian to deliver when required any assessment of compliance or accountant's
attestation report required to be delivered by the Custodian or (ii) any
material misstatement or material omission contained in any assessment of
compliance or accountant's attestation report provided to be delivered by the
Custodian. This indemnity shall survive the termination of this Agreement or the
earlier resignation or removal of the Custodian.
Section 8.18 Limitations on Custodial Responsibilities.
(a) The Custodian shall be under no duty or obligation to inspect,
review or examine the Mortgage Files to determine that the contents thereof are
appropriate for the represented purpose or that they have been actually recorded
or that they are other than what they purport to be on their face.
(b) The Custodian shall not be responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or for
reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy,
perfection or priority of any lien upon or security interest in any Mortgage
File.
(d) The duties and obligations of the Custodian shall only be such
as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
(e) The Custodian makes no representations and shall have no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Mortgage Loans.
(f) The Custodian shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from doing in
connection therewith, except in the case of its negligent performance or
omission or its bad faith or willful misfeasance.
(g) The Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or of any Mortgage Loans or
(ii) the collectibility, insurability, effectiveness including the authority or
capacity of any Person to execute or issue any document in the Mortgage File, or
suitability of any Mortgage Loans.
(h) The Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the Custodian by
receipt of the Mortgage File.
(i) The Custodian shall have no obligation to determine whether the
recordation of any document is necessary.
(j) Except as set forth in Section 8.17(e), in no event shall the
Custodian or its directors, affiliates, officers, agents, and employees be held
liable for any special, indirect or consequential damages resulting from any
action taken or omitted to be taken by it or them hereunder or in connection
herewith even if advised of the possibility of such damages.
(k) In order to comply with laws, rules and regulations applicable
to banking institutions, including those related to the funding of terrorists
activities and money laundering, the Custodian is required to obtain, verify and
record certain information relating to individuals and entities which maintain a
business relationship with the Custodian. Accordingly, each of the parties
agrees to provide to the Custodian upon its request from time to time such
party's complete name, address, tax identification number and such other
identifying information together with copies of such party's constituting
documentation, securities disclosure documentation and such other identifying
documentation as may be available for such party.
(l) The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include, but
not be limited to, acts of God, strikes, lockouts, riots, acts of war or
terrorism, epidemics, governmental or regulatory actions, fire, communication
line failures, computer viruses, power failures, or earthquakes (each a "Force
Majeure Event"). The Custodian agrees that it will use commercially reasonable
efforts to mitigate the effects of the Force Majeure Event. The Custodian
further agrees that it shall give notice (including a reasonable description of
such Force Majeure Event) to the other parties hereto within a reasonable time
but in no event later than two (2) Business Days of the Custodian having notice
or knowledge of such Force Majeure Event and use its best efforts to resume
performance as promptly as practicable under the circumstances.
(m) Nothing in this Agreement shall be deemed to impose on the
Custodian any duty to qualify to do business in any jurisdiction, other than (i)
any jurisdiction where any Mortgage File is or may be held by the Custodian from
time to time hereunder, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure to
qualify could have a material adverse effect on the Custodian or its property or
business or on the ability of the Custodian to perform it duties hereunder.
(n) The Custodian shall have no responsibility nor duty with respect
to any Mortgage File while such Mortgage File is not in its possession. If the
Custodian requests instructions from the Trustee with respect to any act, action
or failure to act in connection with this Agreement, the Custodian shall be
entitled to refrain from taking such action and continue to refrain from acting
unless and until the Custodian shall have received written instructions from the
Trustee, the Servicers or the Depositor with respect to a Mortgage File without
incurring any liability therefore to the Trustee or any other person.
(o) Any Person into which the Custodian may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Custodian shall be a party, or any person succeeding to the business of the
Custodian, shall be the successor of the Custodian hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto anything herein to the contrary notwithstanding.
(p) The Custodian shall not be liable with respect to any action
taken or omitted to be taken in accordance with the written direction,
instruction, acknowledgement, consent or any other communication from the
Trustee or any agent of the Trustee. In the event the terms of this Agreement
and the instructions of the Trustee conflict, the Trustee's instructions shall
control.
(q) In the event that (i) Trustee, any of the Servicers, the
Depositor, or the Custodian shall be served by a third party with any type of
levy, attachment, writ or court order with respect to any Mortgage File, or (ii)
a third party shall institute any court proceeding by which any Mortgage File
shall be required to be delivered otherwise than in accordance with the
provisions of this Agreement, the party receiving such service shall promptly
deliver or cause to be delivered to the other parties to this Agreement copies
of all court papers, orders, documents and other materials concerning such
proceedings. The Custodian shall, to the extent permitted by applicable law,
continue to hold and maintain under the terms of this Agreement all the Mortgage
Files that are the subject of such proceedings pending a final, nonappealable
order of a court of competent jurisdiction permitting or directing disposition
thereof. Upon the final determination of such court, the Custodian shall dispose
of such Mortgage File as directed by the Trustee or Depositor in writing,
consistent with such determination of such court. Expenses of the Custodian
incurred as a result of such proceedings shall be paid by the Trust Fund.
(r) The Custodian may consult with counsel of its choice and any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such opinion of counsel.
(s) Notwithstanding anything to the contrary, the Custodian shall
not be required to expend or risk its own funds or otherwise incur financial
liability in the performance of its duties under this Agreement.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Custodian and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) (I) the purchase on or after
the Group I Optional Termination Date, by the Holder of a majority percentage
interest in the Class I-R Certificates, at the price (the "Group I Termination
Price") equal to the sum of (i) 100% of the unpaid principal balance of each
Group I Mortgage Loan (other than in respect of REO Property for such Group)
plus accrued and unpaid interest thereon at the applicable Mortgage Interest
Rate, and (ii) the lesser of (x) the appraised value of any REO Property in
Group I as determined by the higher of two appraisals completed by two
independent appraisers selected by the applicable Servicer at the expense of
such Servicer and (y) the unpaid principal balance of each Group I Mortgage Loan
related to any REO Property, in each case plus accrued and unpaid interest
thereon at the applicable Mortgage Rate, (iii) all unreimbursed Monthly
Advances, Servicing Advances and indemnification payments payable to the
applicable Servicer for Loan Group I, (iv) any Swap Termination Payment owed to
the Group I Swap Provider pursuant to the Group I Interest Rate Swap Agreement,
and (v) any unreimbursed indemnification payments payable to the Trustee under
this Agreement and (II) the purchase on or after the Group II Optional
Termination Date, by the Holder of a majority percentage interest in the Class
II-AR Certificates, at the price (the "Group II Termination Price") equal to the
sum of (i) 100% of the unpaid principal balance of each Group II Mortgage Loan
(other than in respect of REO Property for such Group) plus accrued and unpaid
interest thereon at the applicable Mortgage Interest Rate, and (ii) the lesser
of (x) the appraised value of any REO Property in Group II as determined by the
higher of two appraisals completed by two independent appraisers selected by the
applicable Servicer at the expense of such Servicer and (y) the unpaid principal
balance of each Group II Mortgage Loan related to any REO Property, in each case
plus accrued and unpaid interest thereon at the applicable Mortgage Rate, (iii)
all unreimbursed Monthly Advances, Servicing Advances and indemnification
payments payable to the applicable Servicer in Loan Group II, and (iv) any
unreimbursed indemnification payments payable to the Trustee and Custodian under
this Agreement; and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement. In no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the 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.
Section 9.02 Final Distribution on the Certificates. If, on any
Servicer Remittance Date, the applicable Servicer notifies the Trustee that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Trustee shall
promptly send a Notice of Final Distribution to the applicable
Certificateholders and the Group I Swap Provider. If the electing Person elects
to terminate a Loan Group pursuant to clause (a) of Section 9.01, by no later
than the 10th day of the month of the final distribution, the Trustee upon
request by the electing Person will notify the Depositor of the final
Distribution Date for such Loan Group and of the applicable repurchase price of
the Mortgage Loans in such Loan Group and the related REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event the electing Person purchases the Mortgage Loans in a
Loan Group (and REO Properties) pursuant to Section 9.01(a), such electing
Person is required to remit to the Trustee the applicable Termination Price on
the Servicer Remittance Date immediately preceding the applicable final
Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the Custodian (with a copy to the Trustee) of the Request for
Release, the Custodian shall promptly release to such electing Person or its
designee the Custodial Files for the Mortgage Loans in the related Loan Group.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due the Depositor and the Trustee hereunder), in
each case on the final Distribution Date and in the order set forth in Section
4.01 for the related Group, in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, an amount up to
an amount equal to (i) as to each Class of Regular Certificates, the Class
Certificate Balance thereof plus for each such Class accrued interest thereon in
the case of an interest-bearing Certificate and all other amounts to which such
Classes are entitled pursuant to Section 4.01 for the related Group, (ii) as to
the Residual Certificates, the amount, if any, which remains on deposit in the
Distribution Account for the related Loan Group after application pursuant to
clause (i) above (other than the amounts retained to meet claims, which retained
amounts shall also be released to the Residual Certificates, as applicable, as
and to the extent such amounts shall no longer be required to be so retained).
The foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or notional principal balances set forth in the Preliminary Statement upon
liquidation of the Trust.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the 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 six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class I-R Certificateholders shall be entitled to all unclaimed funds and
other assets of Loan Group I which remain subject hereto and the Class II-AR
Certificateholders shall be entitled to all unclaimed funds and other assets of
Loan Group II which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event the
electing Person elects to purchase the Mortgage Loans in a Loan Group as
provided in Section 9.01, the related Trust REMICs shall be terminated in
accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel, at the expense of the electing Person,
to the effect that the failure to comply with the requirements of this Section
9.03 will not (i) result in the imposition of taxes on "prohibited transactions"
on any Trust REMIC as defined in Section 860F of the Code, or (ii) cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are
Outstanding:
(a) The Trustee shall sell all of the assets of a Loan Group to the
person electing to terminate such Loan Group or its designee, and, by the next
Distribution Date after such sale, the Trustee shall distribute to the related
Certificateholders the proceeds of such sale in complete liquidation of each of
the related Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the terminated Trust REMICs stating that pursuant to
Treasury Regulations Section 1.860F-1, the first day of the 90 day liquidation
period for each such Trust REMIC was the date on which the Trustee sold the
assets of the Trust Fund to the electing Person.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Trustee, the Depositor and the Custodian (and the Trustee may
request an amendment or consent to any amendment of the Servicing Agreement)
without the consent of any of the Certificateholders (i) to cure any ambiguity
or mistake, (ii) to correct any defective provision herein, or to supplement any
provision in this Agreement which may be inconsistent with any other provision
herein or in the Servicing Agreement, (iii) to add to the duties of the
Depositor, the Custodian or the Trustee (or with respect to the applicable
Servicing Agreement of the related Servicer), (iv) to add any other provisions
with respect to matters or questions arising hereunder or under the Servicing
Agreement, or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement or in the applicable Servicing Agreement;
provided that any action pursuant to clause (iv) or (v) above shall not, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall be an expense
of the requesting party, but in any case shall not be an expense of the Trustee,
the Custodian or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that the amendment shall
not be deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Custodian and the Depositor also may
at any time and from time to time amend this Agreement (and the Trustee shall
request the related Servicer to amend the applicable Servicing Agreement),
without the consent of the Certificateholders, to modify, eliminate or add to
any of its provisions to such extent as shall be necessary or helpful to (i)
maintain the qualification of each Trust REMIC under the REMIC Provisions, (ii)
avoid or minimize the risk of the imposition of any tax on any Trust REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code; provided, that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Custodian and the Trustee and the Trustee shall request the
related Servicer to amend the applicable Servicing Agreement) with the consent
of the Holders of Certificates evidencing Percentage Interests aggregating not
less than 66-2/3% 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 of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
66-2/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement or the Servicing
Agreement unless (i) it shall have first received an Opinion of Counsel, which
opinion shall not be an expense of the Trustee or the Trust Fund, to the effect
that such amendment will not cause the imposition of any tax on any Trust REMIC
or the Certificateholders or cause any such Trust REMIC to fail to qualify as a
REMIC or the grantor trust to fail to qualify as a grantor trust at any time
that any Certificates are Outstanding and (ii) the party seeking such amendment
shall have provided written notice to the Rating Agencies and the Group I Swap
Provider (with a copy of such notice to the Trustee) of such amendment, stating
the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the related Servicer under the applicable Servicing Agreement,
any Certificate beneficially owned by the Depositor or any of its Affiliates or
by the Original Loan Sellers or any of its Affiliates shall be deemed not to be
Outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
the Servicing Agreements requiring the consent of Certificateholders, the
Trustee shall furnish written notification of the substance or a copy of such
amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 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 Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement or the
Servicing Agreement and that all requirements for amending this Agreement or the
Servicing Agreement have been complied with; and (ii) either (A) the amendment
does not adversely affect in any material respect the interests of any
Certificateholder or (B) the conclusion set forth in the immediately preceding
clause (A) is not required to be reached pursuant to this Section 10.01.
Notwithstanding the Trustee's consent to, or request for, any
amendment of the Servicing Agreement pursuant to the terms of this Section
10.01, the Servicing Agreement cannot be amended without the consent of the
applicable Servicer.
Notwithstanding the foregoing, any amendment to this Agreement
relating to Group I shall require the prior written consent of the Group I Swap
Provider if such amendment materially and adversely affects the rights or
interests of the Group I Swap Provider.
The Trustee may, but shall not be obligated to, enter into any
amendment which negatively affects the Trustee's own rights, duties or
immunities under this Agreement.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Depositor at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Depositor.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, either of such assets are held
to be the property of the Depositor, or if for any other reason this Agreement
is held or deemed to create a security interest in either of such assets, then
(i) this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the applicable Servicer or
the Trustee and the appointment of any successor;
(iv) the repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Sale Agreement;
(v) any notice of a repurchase of a Mortgage Loan pursuant to this
Agreement or a Sale Agreement; and
(vi) the final payment to Certificateholders.
(b) In addition, the Trustee shall promptly make available on its
internet website to each Rating Agency copies of the following:
(i) each report to Certificateholders described in Section 4.04;
(ii) the related Servicer's annual statement of compliance and the
accountant's attestation described in the applicable Servicing Agreement;
and
(c) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, BCAP LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, Facsimile: (000) 000-0000, or such other address as
the Depositor may hereafter furnish to the applicable Servicer and the Trustee;
(b) in the case of the Trustee to 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: Trust Administration-BCAP 2007-AA2. or in each case
such other address as the Trustee may hereafter furnish to the Depositor; (c) in
the case of Xxxxx Fargo, as Custodian, to Xxxxx Fargo Bank, National
Association, 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 Attention:
Corporate Trust Services or such other addresses as may be hereafter furnished
to the Group I Swap Provider and the other parties hereto in writing; (d) (d) in
the case of Xxxxx Fargo, as a Servicer, 1 Home Campus, MAC X0000-00X, Xxx
Xxxxxx, Xxxx 00000-000 Attention: Xxxx Xxxxx, Facsimile No. (000) 000-0000, with
a copy to General Counsel, or such other address as may be hereafter furnished
to the other parties hereto and the Group I Swap Provider in writing; (e) in the
case of Countrywide, to 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention Xxxxxx Xxxxx; (f) in the case of Countrywide Servicing in its capacity
as Servicer, to Countrywide Home Loans Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx
Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, Fax: 000-000-0000, Email:
lupe_montero@ xxxxxxxxxxx.xxx; and (g) in the case of each of the Rating
Agencies, the address specified therefor in the definition corresponding to the
name of such Rating Agency. Notices to Certificateholders shall be deemed given
when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions 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 herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to 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 costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with all reasonable requests made by the Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, the Trustee
shall cooperate fully with the Depositor to deliver to the Depositor (including
its assignees or designees), any and all statements, reports, certifications,
records and any other information available to such party and reasonably
necessary in the good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Trustee, reasonably believed by the Depositor to be
necessary in order to effect such compliance.
Section 10.11 Third Party Rights: The Group I Swap Provider, and
each Person entitled to indemnification hereunder who is not a party hereto,
shall be deemed a third-party beneficiary of this Agreement to the same extent
as if it were a party hereto and shall have the right to enforce its rights
under this Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BCAP LLC
By: /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
XXXXX FARGO BANK, N.A., as Custodian
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Authorized Signer
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Trustee and not attached to the Trust Agreement)
EXHIBIT A
FORM OF CLASS I-1-A, CLASS I-2-A-1, CLASS I-2-A-2, CLASS II-1-A-1, CLASS
II-1-A-2, CLASS II-1-A-3, CLASS II-1-A-4, CLASS II-1-A-5, CLASS II-1-A-6, CLASS
II-1-A-7, CLASS II-1-A-8, CLASS II-1-A-9, CLASS II-1-A-10, CLASS II-1-A-11,
CLASS II-1-A-12, CLASS II-1-A-13, CLASS II-1-A-14, CLASS II-1-A-15, CLASS
II-2-A, CLASS I-1-IO, CLASS I-2-IO, CLASS I-1-PO, CLASS I-2-PO, CLASS I-M-1,
CLASS I-M-2, CLASS I-M-3, CLASS I-M-4, CLASS I-M-5, CLASS I-M-6, CLASS I-M-7,
CLASS I-M-8, CLASS II-M-1, CLASS II-B-1, CLASS II-B-2, CLASS II-B-3, CLASS
II-B-4 AND CLASS II-B-5 CERTIFICATES.
[For Class I-1-A, Class II-B-3, Class II-B-4 and Class II-B-5 only: IF THIS
CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY INTEREST
HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE
A TRANSFEROR LETTER (THE "TRANSFEROR LETTER") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A
LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO
HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN 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"), [For Group I Only. AND
CERTAIN OTHER ASSETS.
[To be added to the Class II-B-3, Class II-B-4 and Class II-B-5 Certificates:
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THE
PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND
WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICERS TO ANY OBLIGATION
IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.]
[To be added to the Group I Certificates only: AS LONG AS THE GROUP I INTEREST
RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER OF THIS CERTIFICATE, OR
ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE REPRESENTED THAT EITHER (I) IT IS
NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY FEDERAL, STATE
OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE, NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT
NOR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT OR (II) THE ACQUISITION AND
HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER AT LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A COMPARABLE EXEMPTION
AVAILABLE UNDER SIMILAR LAW.]
[To be added to the Class PO Certificates only: THIS CERTIFICATE IS A
PRINCIPAL ONLY CERTIFICATE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS IN
RESPECT OF INTEREST.]
[To be added to the Class IO Certificates only: THIS CERTIFICATE IS AN
INTEREST ONLY CERTIFICATE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS IN RESPECT
OF PRINCIPAL.]
Certificate No. :
Cut-off Date : March 1, 2007
First Distribution Date : April 25, 2007
Initial Class Certificate Balance of
this Certificate
("Denomination") :
------------
Initial Class Certificate Balances of
all Certificates of this Class : [I-1-A-1] [$436,337,000] [II-1-A-1] [$50,193,000.00]
[I-2-A-1] [$519,568,000] [II-1-A-2] [$54,315,833.00]
[I-2-A-2] [$57,730,000] [II-1-A-3] [$10,863,167.00]
[I-M-1] [$14,527,000] [II-1-A-4] [$25,000.00]
[I-M-2] [$9,146,000] [II-1-A-5] [$26,160,000.00]
[I-M-3] [$5,380,000] [II-1-A-6] [$25,000.00]
[I-M-4] [$5,380,000] [II-1-A-7] [$65,598,000.00]
[I-M-5] [$5,380,000] [II-1-A-8] [$30,378,000.00]
[I-M-6] [$5,380,000] [II-1-A-9] [$2,819,250.00]
[I-M-7] [$4,842,000] [II-1-A-10] [$2,061,000.00]
[I-M-8] [$5,380,000] [II-1-A-11] [$50,000,000.00]
[II-1-A-12] [$43,940,000.00]
[II-1-A-13] [$4,725,000.00]
[II-1-A-14] [$15,568,916.00]
[II-1-A-15] [$25,000.00]
[II-2-A-1] [$29,449,900.00]
[II-M-1] [$8,530,000.00]
[II-B-1] [$5,555,000.00]
[II-B-2] [$3,174,000.00]
[II-B-3] [$1,984,000.00]
[II-B-4] [$1,190,000.00]
[II-B-5] [$3,714,748.00]
[II-1-IO] [$169,541,140.00]
[II-2-IO] [$9,764,050.00]
[II-1-PO] [$4,725,960.00]
[II-2-PO] [$674,025.00]
[II-2-AR] [$100.00]
CUSIP : [I-1-A-1] [05530N AN7] [II-1-A-1] [05530N AP2]
[I-2-A-1] [05530N AA5] [II-1-A-2] [05530N AQ0]
[I-2-A-2] [05530N AB3] [II-1-A-3] [05530N AR8]
[I-M-1] [05530N AC1] [II-1-A-4] [05530N AS6]
[I-M-2] [05530N AD9] [II-1-A-5] [05530N AT4]
[I-M-3] [05530N AE7] [II-1-A-6] [05530N AU1]
[I-M-4] [05530N AF4] [II-1-A-7] [05530N AV9]
[I-M-5] [05530N AG2] [II-1-A-8] [05530N AW7]
[I-M-6] [05530N AH0] [II-1-A-9] [05530N AX5]
[I-M-7] [05530N AJ6] [II-1-A-10] [05530N AY3]
[I-M-8] [05530N AK3] [II-1-A-11] [05530N AZ0]
[II-1-A-12] [05530N BA4]
[II-1-A-13] [05530N BB2]
[II-1-A-14] [05530N BC0]
[II-1-A-15] [05530N BD8]
[II-2-A-1] [05530N BH9]
[II-M-1] [05530N BL0]
[II-B-1] [05530N BM8]
[II-B-2] [05530N BN6]
[II-B-3] [05530N BP1]
[II-B-4] [05530N BQ9]
[II-B-5] [05530N BR7]
[II-1-IO] [05530N BF3]
[II-2-IO] [05530N BK2]
[II-1-PO] [05530N BE6]
[II-2-PO] [05530N BJ5]
[II-AR] [05530N BG1]
ISIN : [I-1-A-1][US05530NAN75] [II-1-A-1][US05530NAP24]
[I-2-A-1] [US05530NAA54] [II-1-A-2][US05530NAQ07]
[I-2-A-2] [US05530NAB38] [II-1-A-3][US05530NAR89]
[I-M-1] [US05530NAC11] [II-1-A-4][US05530NAS62]
[I-M-2] [US05530NAD93] [II-1-A-5][US05530NAT46]
[I-M-3] [US05530NAE76] [II-1-A-6][US05530NAU19]
[I-M-4] [US05530NAF42] [II-1-A-7][US05530NAV91]
[I-M-5] [US05530NAG25] [II-1-A-8][US05530NAW74]
[I-M-6] [US05530NAH08] [II-1-A-9][US05530NAX57]
[I-M-7] [US05530NAJ63] [II-1-A-10]US05530NAY31]
[I-M-8] [US05530NAK37] [II-1-A-11][US05530NAZ06]
[II-1-A-12][US05530NBA46]
[II-1-A-13][US05530NBB29]
[II-1-A-14][US05530NBC02]
[II-1-A-15][US05530NBD24]
[II-2-A-1][US05530NBH98]
[II-M-1][US05530NBL01]
[II-B-1][US05530NBM83]
[II-B-2][US05530NBN66]
[II-B-3][US05530NBP15]
[II-B-4][US05530NBQ97]
[II-B-5][US05530NBR70]
[II-1-IO][US05530NBF33]
[II-2-IO][US05530NBK28]
[II-1-PO][US05530NBE67]
[II-2-PO][US05530NBJ54]
[II-AR][US05530NBG16]
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2
[Class I-1-A][Class I-2-A-1][Class I-2-A-2][Class II-1-A-1][Class
II-1-A-2][Class II-1-A-3][Class II-1-A-4][Class II-1-A-5][Class
II-1-A-6][Class II-1-A-7][Class II-1-A-8][CLASS II-1-A-9][Class
II-1-A-10][Class II-1-A-11][Class II-1-A-12][Class II-1-A-13][Class
II-1-A-14][Class II-1-A-15][Class II-2-A-1][Class I-M-1][Class I-M 2][Class
I-M 3][Class I-M 4][Class I-M 5][Class I-M 6][Class I-M 7][Class I-M 8][
Class II-M-1][Class II-B-1][Class II-B-2][Class II-B-3][Class II-B-4][Class
II-B-5][Class I-1-IO][Class I-2-IO][Class I-1-PO][Class I-2-PO]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Class Certificate Balance at any time may be
less than the Class Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between BCAP LLC, as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as custodian (the "Custodian"), and
Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Authenticated:
By:____________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA2 Mortgage Pass Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the [Group I ][Group II] Mortgage Loans is less than or equal to 10%
of the [Group I][Group II] Cut-off Date Pool Principal Balance, the Person
specified in Section 9.01 of the Agreement will have the option to repurchase,
in whole, from the Trust Fund all remaining [Group I ][Group II] Mortgage Loans
in and all property acquired in respect of the [Group I ][Group II] Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF [CLASS I-R][CLASS II-AR] CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON
BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R
Cut-off Date : March 1, 2007
First Distribution Date : April 25, 2007
CUSIP : R [__________________]
ISIN : R [_________________]
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2
[Class I-R][Class II-AR]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Class Certificate Balance at any time may be
less than the Class Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
[Class I-R][Class II-AR] Certificates pursuant to a Trust Agreement dated as of
the Cut-off Date specified above (the "Agreement") between BCAP LLC, as
depositor (the "Depositor"), Xxxxx Fargo Bank, N. A., as custodian (the
"Custodian") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this [Class
I-R][Class II-AR] Certificate at the office designated by the Trustee for such
purposes.
No transfer of a [Class I-R][Class II-AR] Certificate shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee or the Trust Fund.
In the event that such representation is violated, or any attempt is made to
transfer to a plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this [Class I-R][Class II-AR] Certificate shall be
deemed by the acceptance or acquisition an Ownership Interest in this [Class
I-R][Class II-AR] Certificate to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
this [Class I-R][Class II-AR] Certificate are expressly subject to the following
provisions: (i) each Person holding or acquiring any Ownership Interest in this
[Class I-R][Class II-AR]Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee, (ii) no Ownership Interest in this [Class I-R][Class
II-AR] Certificate may be registered on the Closing Date or thereafter
transferred, and the Trustee shall not register the Transfer of this Certificate
unless, in addition to the certificates required to be delivered to the Trustee
under Section 5.02(b) of the Agreement, the Trustee shall have been furnished
with a Transfer Affidavit of the initial owner or the proposed transferee in the
form attached as Exhibit H to the Agreement, (iii) each Person holding or
acquiring any Ownership Interest in this Class [Class I-R][Class II-AR]
Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person
to whom such Person attempts to Transfer its Ownership Interest this [Class
I-R][Class II-AR] Certificate, (B) to obtain a Transfer Affidavit from any
Person for whom such Person is acting as nominee, Trustee or agent in connection
with any Transfer of this [Class I-R][Class II-AR] Certificate, (C) not to cause
income with respect to the [Class I-R][Class II-AR] Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this [Class I-R][Class
II-AR] Certificate or to cause the Transfer of the Ownership Interest in this
[Class I-R][Class II-AR] Certificate to any other Person if it has actual
knowledge that such Person is a Non-Permitted Transferee and (iv) any attempted
or purported Transfer of the Ownership Interest in this [Class I-R][Class II-AR]
Certificate in violation of the provisions herein shall be absolutely null and
void and shall vest no rights in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By: _______________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA2 Mortgage Pass Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee, the Depositor, and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the [Group I][Group II] Mortgage Loans is less than or equal to 10%
of the [Group I][Group II] Cut-off Date Pool Principal Balance, the Person
specified in Section 9.01 of the Agreement will have the option to repurchase,
in whole, from the Trust Fund all remaining Mortgage Loans and all property
acquired in respect of the [Group I][Group II] Mortgage Loans at a purchase
price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS I-CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY AND THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE SATISFY THE REQUIREMENTS FOR
EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE
EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR
OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN
THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE
OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
NO TRANSFER OF ANY CLASS I-CE CERTIFICATES SHALL BE MADE UNLESS THE PROPOSED
TRANSFEREE OF SUCH CLASS I-CE CERTIFICATE PROVIDES TO THE TRUSTEE THE
APPROPRIATE TAX CERTIFICATION FORM (I.E., IRS FORM W-9 OR IRS FORM W-8BEN,
W-8IMY, W-8EXP OR W-8EC1, AS APPLICABLE (OR ANY SUCCESSOR FORM THERETO)) AND
AGREES TO UPDATE SUCH FORMS (I) UPON EXPIRATION OF ANY SUCH FORM, (II) AS
REQUIRED UNDER THEN APPLICABLE U.S. TREASURY REGULATIONS AND (III) PROMPTLY UPON
LEARNING THAT SUCH FORM HAS BECOME OBSOLETE OR INCORRECT, AS A CONDITION TO SUCH
TRANSFER. UNDER THE AGREEMENT, UPON RECEIPT OF ANY SUCH TAX CERTIFICATION FORM
FROM A TRANSFEREE OF ANY CLASS I-CE CERTIFICATE, THE TRUSTEE SHALL FORWARD SUCH
TAX CERTIFICATION FORM PROVIDED TO IT TO THE GROUP I SWAP PROVIDER. EACH HOLDER
OF A CLASS I-CE CERTIFICATE AND EACH TRANSFEREE THEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE TRUSTEE FORWARDING TO THE GROUP I SWAP PROVIDER ANY SUCH TAX
CERTIFICATION FORM IT HAS PROVIDED AND UPDATED IN ACCORDANCE WITH THESE TRANSFER
RESTRICTIONS. ANY PURPORTED SALES OR TRANSFERS OF ANY CLASS I-CE CERTIFICATE TO
A TRANSFEREE WHICH DOES NOT COMPLY WITH THESE REQUIREMENTS SHALL BE DEEMED NULL
AND VOID UNDER THIS AGREEMENT.
Certificate No. : I-CE
Cut-off Date : March 1, 2007
First Distribution Date : April 25, 2007
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 05530N AM9
ISIN : US05530NAM92
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2
CLASS I-CE
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the Denomination of this Certificate by the aggregate of the
Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") between BCAP LLC, as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Trustee for such purposes or the office or agency
maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Agreement) and deliver
either (i) a Rule 144A Letter, in either case substantially in the form attached
to the Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant to
the 1933 Act, which Opinion of Counsel shall be an expense of the transferor. No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code or any materially
similar provisions of applicable federal, state or local law ("Similar Law") or
a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, or (ii) if the
transferee is an insurance company and the certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation letter that it is purchasing
such Certificates with the assets of its general account and that the purchase
and holding of such Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, or (iii) in the case of a Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments) or a plan subject to Similar
Law, or a Trustee of any such plan or any other person acting on behalf of any
such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall
not be an expense of the Trustee, the Depositor or the Trust Fund, addressed to
the Trustee and the Depositor to the effect that the purchase and holding of
such Certificate will not constitute or result in a non-exempt prohibited
transaction within the meaning of ERISA, Section 4975 of the Code or any Similar
Law and will not subject the Trustee to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By:_________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
BCAP LLC
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Trustee and the other parties to the Agreement with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee, the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Trustee, the Depositor, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans is less than or equal to 10% of the
Cut-off Date Principal Balance, the Person specified in Section 9.01 of the
Agreement will have the option to repurchase, in whole, from the Trust Fund all
remaining Group I Mortgage Loans and all property acquired in respect of the
Group I Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______, or, if mailed by check, to _____________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF REQUEST FOR RELEASE
(for Xxxxx Fargo Bank, N.A., as custodian)
In connection with the administration of the Mortgage Loans held by
you as trustee, we request the release, and acknowledge receipt, of the
(Custodial File/[specify documents]) for the Mortgage Loan described below, for
the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Send Custodial File to:
Reason for Requesting Documents (check one)
_______ 1. Mortgage Loan Paid in Full. (The requestor hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account pursuant to the Trust
Agreement.)
_______ 2. Mortgage Loan Repurchased Pursuant to any or all of the
Trust Agreement, the applicable Servicing Agreements or the
Assignment Agreements. (The requestor hereby certifies that
the Repurchase Price (as defined in the applicable agreement)
has been credited to the Collection Account pursuant to the
Trust Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The
requestor hereby certifies that all proceeds of foreclosure,
insurance, condemnation or other liquidation have been finally
received and credited to the Collection Account pursuant to
the Trust Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
Capitalized terms not defined herein shall have the meanings set
forth in the Trust Agreement, dated as of March 1, 2007 (the "Trust Agreement"),
between BCAP LLC, as depositor, Xxxxx Fargo Bank, N.A., as custodian, and
Deutsche Bank National Trust Company, as trustee.
I, the undersigned, hereby certify that the above statements are
true and correct and set my name hereof on this __ day of ___________, 200_.
[REQUESTOR]
By: _____________________________________
Name:
Title:
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the trustee, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
XXXXX FARGO BANK, N.A.,
as a Custodian
By: ______________________________
Name:
Title
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
Xxxxx Fargo Bank, National Association
1 Home Campus MAC X2401-06T
Xxx Xxxxxx, Xxxx 00000-0000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Re: Trust Agreement, dated as of March 1, 2007, among BCAP LLC, as
depositor, Xxxxx Fargo Bank, National Association, as custodian and
Deutsche Bank National Trust Company, as trustee
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Custodian, certifies that
it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, an executed Assignment
of the Mortgage (which may be included in a blanket assignment or
assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
XXXXX FARGO BANK, N.A.
By:_________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Original Loan Seller]
_____________________
_____________________
Re: Trust Agreement, dated as of March 1, 2007, among BCAP LLC, as
depositor, Xxxxx Fargo Bank, National Association, as custodian and
Deutsche Bank National Trust Company, as trustee
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust Agreement
(the "Trust Agreement"), the undersigned, as Custodian, hereby certifies that as
to each Mortgage Loan (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording with the standard Xxxxxx Xxx/FHLMC Condominium Rider
or PUD Rider be attached if the mortgaged property is a condominium or is
located in a PUD;
(d) except with respect to a MERS Loan, originals of any intervening
Mortgage assignment or certified copies in either case evidencing
recording; provided that the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(e) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(f) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(g) to the extent applicable, (1) an original power of attorney, or
a certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (2) an original or copy of any surety
agreement or guaranty agreement;
(h) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement;
(i) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 31 and 32 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
XXXXX FARGO BANK, N.A., not in its
individual capacity, but solely as
Custodian
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
BCAP LLC Trust 2007-AA2,
Mortgage Pass-Through Certificates, Series 2007-AA2
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a [Class I-R][Class II-AR]
Certificate (the "Certificate") issued pursuant to the Trust Agreement (the
"Agreement"), between BCAP LLC, as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as custodian (the "Custodian") and Deutsche Bank National Trust
Company, as trustee (the "Trustee"). Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor, and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is
______________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee:
[_] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of _______, 20__.
_______________________________
Print Name of Transferee
By:______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------------
[Assistant] Secretary
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 Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
______________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
DB Services Tennessee
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Transfer Unit
Re: BCAP LLC Trust 2007-AA2,
Mortgage Pass-Through Certificates Series 2007-AA2,
Class [?]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
Print Name of Transferor
By: ____________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
DB Services Tennessee
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Transfer Unit
Barclays Bank PLC,
as Group I Swap Provider
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: BCAP 2007-AA2
Re: BCAP LLC Trust 2007-AA2,
Mortgage Pass-Through Certificates Series 2007-AA2,
Class [?]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class I-1-A
Certificate, Class I-2-A-1 Certificate, Class I-2-A-2 Certificate, Class
II-1-A-1 Certificate, Class II-1-A-2 Certificate, Class II-1-A-3 Certificate,
Class II-1-A-4 Certificate, Class II-1-A-5 Certificate, Class II-1-A-6
Certificate, Class II-1-A-7 Certificate, Class II-1-A-8 Certificate, Class
II-1-A-9 Certificate, Class II-1-A-10 Certificate, Class II-1-A-11 Certificate,
Class II-1-A-12 Certificate, Class II-1-A-13 Certificate, Class II-1-A-14
Certificate, Class II-1-A-15 Certificate, Class II-1-PO Certificate, Class
II-1-IO Certificate, Class II-AR Certificate, Class II-2-A-1 Certificate, Class
I-M-1 Certificate, Class I-M-2 Certificate, Class I-M-3 Certificate, Class I-M-4
Certificate, Class I-M-5 Certificate, Class I-M-6 Certificate, Class I-M-7
Certificate, Class I-M-8 Certificate, Class II-2-PO Certificate, Class II-2-IO
Certificate, Class II-M-1 Certificate, Class II-B-1 Certificate, or Class II-B-2
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class II-B-3 Certificate, Class II-B-4 Certificate and Class II-B-5
Certificate or Class I-CE Certificate that has been the subject of an
ERISA-Qualifying Underwriting, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Our taxpayer identification number is [_]. We attach hereto IRS Form
W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9, as applicable.
We hereby consent to the attached Forms being provided to the Group I Swap
Provider.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
-------------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under the
Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $__________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
___________________________________
Print Name of Transferee
By:________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Buyer
Date:______________________________
EXHIBIT J
XXXXXXXX-XXXXX CERTIFICATION
[DATE]
BCAP TRUST LLC 2007-AA2
[ ]
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: BCAP TRUST LLC 2007-AA2
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of BCAP TRUST LLC 0000-XX0 (xxx "Xxxxxxxx Xxx periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date: _____________________
_________________________________
[Signature]
[Title]
EXHIBIT K
FORM OF TRUSTEE CERTIFICATION TO
BE PROVIDED TO DEPOSITOR
Re: BCAP LLC Trust 2007-AA2 (the "Trust") Mortgage Pass-Through
Certificates Series 2007-AA2, issued pursuant to the Trust
Agreement, dated as of March 1, 2007 (the "Trust Agreement"),
between BCAP LLC, as depositor (the "Depositor"), Deutsche Bank
National Trust Company, as trustee, and Xxxxx Fargo Bank, National
Association, as custodian
The Trustee hereby certifies to the Depositor and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of the period covered by the Annual Report (collectively with
the Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report, it being understood that the Trustee is not responsible for
verifying the accuracy or completeness of information in the Reports (a)
provided by Persons other than the Trustee or any Subcontractor utilized by the
Trustee or (b) relating to Persons other than the Trustee or any Subcontractor
utilized by the Trustee as to which a Responsible Officer of the Trustee does
not have actual knowledge;
3. Based on my knowledge, the distribution information required to
be provided by the Trustee under the Trust Agreement for inclusion in the
Reports is included in the Reports; and
4. The report on assessment of compliance with servicing criteria
applicable to the Trustee for asset-backed securities of the Trustee and each
Subcontractor utilized by the Trustee and its related attestation report on
assessment of compliance with servicing criteria required to be included in the
Annual Report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and have
been disclosed in the Annual Report.
Date:
By:
Name:
Title:
Date: _________________________________
DEUTSCHE BANK NATIONAL TRUST
COMPANY
By:
[Signature]
[Title]
EXHIBIT L-1
XXXXX FARGO SALE AND SERVICING AGREEMENT
================================================================================
XXXXXX FUNDING LLC,
Purchaser
and
XXXXX FARGO BANK, N.A.,
Company
--------------------------------------------------------------------------------
SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of February 1, 2007
--------------------------------------------------------------------------------
Fixed Rate Mortgage Loans
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS
AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files...............................
Section 2.02 Books and Records; Transfers of Mortgage Loans...............
Section 2.03 Custodial Agreement; Delivery of Documents...................
Section 2.04 Examination of Mortgage Files................................
Section 2.05 Representations, Warranties and Agreements of Company........
Section 2.06 [Reserved]...................................................
Section 2.07 Closing......................................................
Section 2.08 Closing Documents............................................
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.......................
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans...............................................
Section 3.03 Repurchase...................................................
Section 3.04 Repurchase of Mortgage Loans with First Payment Defaults.....
Section 3.05 Premium Recapture............................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer...................................
Section 4.02 Liquidation of Mortgage Loans................................
Section 4.03 Collection of Mortgage Loan Payments.........................
Section 4.04 Establishment of and Deposits to Custodial Account...........
Section 4.05 Permitted Withdrawals From Custodial Account.................
Section 4.06 Establishment of and Deposits to Escrow Account..............
Section 4.07 Permitted Withdrawals From Escrow Account....................
Section 4.08 Payment of Taxes, Insurance and Other Charges................
Section 4.09 Protection of Accounts.......................................
Section 4.10 Maintenance of Hazard Insurance..............................
Section 4.11 Maintenance of Mortgage Impairment Insurance.................
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................
Section 4.13 Inspections..................................................
Section 4.14 Restoration of Mortgaged Property............................
Section 4.15 Maintenance of PMI Policy; Claims............................
Section 4.16 Title, Management and Disposition of REO Property............
Section 4.17 Real Estate Owned Reports....................................
Section 4.18 Liquidation Reports..........................................
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.....................................................
Section 4.20 Application of Buydown Funds.................................
Section 4.21 Notification of Adjustments..................................
Section 4.22 Confidentiality/Protection of Customer Information...........
Section 4.23 Fair Credit Reporting Act....................................
Section 4.24 Establishment of and Deposits to Subsidy Account.............
Section 4.25 Letter of Credit Compliance..................................
Section 4.26 Letter of Credit Draws.......................................
Section 4.27 Assignment of the Letter of Credit...........................
Section 4.28 Pledge Holder Defaults.......................................
Section 4.29 Use of Subservicers and Subcontractors.......................
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances..................................................
Section 5.02 Statements to Purchaser......................................
Section 5.03 Monthly Advances by Company..................................
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property..............................
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files......
Section 6.03 Servicing Compensation.......................................
Section 6.04 Annual Statements as to Compliance...........................
Section 6.05 [Reserved]...................................................
Section 6.06 Report on Assessment of Compliance and Attestation...........
Section 6.07 Remedies.....................................................
Section 6.08 Right to Examine Company Records.............................
Section 6.09 Compliance with REMIC Provisions.............................
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information.....................................
Section 7.02 Financial Statements; Servicing Facility.....................
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification; Third Party Claims..........................
Section 8.02 Merger or Consolidation of the Company.......................
Section 8.03 Limitation on Liability of Company and Others................
Section 8.04 Limitation on Resignation and Assignment by Company..........
Section 8.05 Assignment by Purchaser......................................
ARTICLE IX
AGENCY TRANSFERS, SECURITIZATION
TRANSACTIONS AND WHOLE LOAN TRANSFERS
Section 9.01 Agency Transfers, Securitization Transactions and Whole
Loan Transfers...............................................
ARTICLE X
DEFAULT
Section 10.01 Events of Default............................................
Section 10.02 Waiver of Defaults...........................................
ARTICLE XI
TERMINATION
Section 11.01 Termination..................................................
Section 11.02 Termination Without Cause....................................
Section 11.03 Transfer of Servicing........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.........................................
Section 12.02 Amendment....................................................
Section 12.03 Governing Law................................................
Section 12.04 Duration of Agreement........................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Relationship of Parties......................................
Section 12.08 Execution; Successors and Assigns............................
Section 12.09 Recordation of Assignments of Mortgage.......................
Section 12.10 Assignment by Purchaser......................................
Section 12.11 Solicitation of Mortgagor....................................
Section 12.12 Further Agreements...........................................
Section 12.13 General Interpretive Principles..............................
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Custodial Agreement
Exhibit C Contents of Each Mortgage File and Servicing File
Exhibit D Data File Elements
Exhibit E Form of Opinion of Counsel
Exhibit F Servicing Criteria
Exhibit G Sarbanes Certification
Exhibit H Form of Assignment, Assumption and Recognition Agreement
Exhibit I Indemnification and Contribution Agreement
Exhibit J Officer's Certificate of the Company
This is a Seller's Warranties and Servicing Agreement for fixed
rate, residential, first lien mortgage loans, dated and effective as of February
1, 2007, and is executed between Xxxxxx Funding LLC, as purchaser (the
"Purchaser"), and Xxxxx Fargo Bank, N.A., as seller and servicer (the
"Company").
W I T N E S S E T H:
WHEREAS, the Purchaser has agreed to purchase from the Company and
the Company has agreed to sell to the Purchaser certain Mortgage Loans (as
defined herein) which have an aggregate outstanding principal balance as of the
close of business on the Cut-off Date, after deduction of payments due on or
before such date, whether or not received, as indicated on the Mortgage Loan
Schedule, which is annexed hereto as Exhibit A;
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule;
and
WHEREAS, the Purchaser and the Company wish to prescribe the manner
of purchase of the Mortgage Loans and the conveyance, servicing and control of
the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as the Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: A Mortgage Loan which provides for
the adjustment of the Mortgage Interest Rate payable in respect thereto.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date
on which the Mortgage Interest Rate is adjusted in accordance with the terms of
the related Mortgage Note and Mortgage.
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.
Agency/Agencies: Xxxxxx Xxx, Xxxxxxx Mac or GNMA, or any of them as
applicable.
Agency Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to an Agency which sale or transfer is not a
Securitization Transaction or Whole Loan Transfer.
Agreement: This Seller's Warranties and Servicing Agreement and all
exhibits, amendments and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgage Loan, the lesser of
(i) the value set forth on the appraisal made in connection with the origination
of the related Mortgage Loan as the value of the related Mortgaged Property, or
(ii) the purchase price paid for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan, such value shall be based solely on
the appraisal made in connection with the origination of such Mortgage Loan.
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 Purchaser, or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
Assignment of Mortgage Note and Pledge Agreement: With respect to a
Cooperative Loan, an assignment of the Mortgage Note and Pledge Agreement.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
as assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Apartment is located to effect the
assignment of such Proprietary Lease.
Balloon Loan: A Mortgage Loan for which the Monthly Payments will
not fully amortize the mortgage loan by the end of the term, at which time the
balance of the principal is due in a lump sum.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the states where the
parties are located are authorized or obligated by law or executive order to be
closed.
Buydown Agreement: An agreement between the Company and a Mortgagor,
or an agreement among the Company, a Mortgagor and a seller of a Mortgaged
Property or a third party with respect to a Mortgage Loan which provides for the
application of Buydown Funds.
Buydown Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, the Company or any other source, plus interest
earned thereon, in order to enable the Mortgagor to reduce the payments required
to be made from the Mortgagor's funds in the early years of a Mortgage Loan.
Buydown Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buydown Agreement, (i) the Mortgagor pays less than the full
monthly payments specified in the Mortgage Note for a specified period, and (ii)
the difference between the payments required under such Buydown Agreement and
the Mortgage Note is provided from Buydown Funds.
Buydown Period: The period of time when a Buydown Agreement is in
effect with respect to a related Buydown Mortgage Loan.
Closing Date: February 27, 2007.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Commission: The United States Securities and Exchange Commission.
Commitment Letter: That certain letter agreement dated as of January
12, 2007, between the Company and the Purchaser. [MODIFY FOR TWO LETTERS
THROUGHOUT]
Company: Xxxxx Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company Information: As defined in Section 9.01(e)(i)(A).
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Cooperative: The entity that holds title (fee or an acceptable
leasehold estate) to all of the real property that the Project comprises,
including the land, separate dwelling units and all common areas.
Cooperative Apartment: The specific dwelling unit relating to a
Cooperative Loan.
Cooperative Lease: With respect to a Cooperative Loan, the lease
with respect to a dwelling unit occupied by the Mortgagor and relating to the
stock allocated to the related dwelling unit.
Cooperative Lien Search: A search for (a) federal tax liens,
mechanics' liens, lis pendens, judgments of record or otherwise against (i) the
Cooperative, (ii) the seller of the Cooperative Apartment and (iii) the Company
if the Cooperative Loan is a refinanced Mortgage Loan, (b) filings of financing
statements and (c) the deed of the Project into the Cooperative.
Cooperative Loan: A Mortgage Loan that is secured by Cooperative
Shares and a Proprietary Lease granting exclusive rights to occupy the related
Cooperative Apartment.
Cooperative Shares: The shares of stock issued by a Cooperative,
owned by the Mortgagor, and allocated to a Cooperative Apartment.
Covered Loan: A Mortgage Loan categorized as "Covered" pursuant to
the Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.7,
Appendix E, revised July 1, 2006 (excluding New Jersey "Covered Home Loans" as
that term is defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002).
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents, a form of which is annexed hereto as Exhibit B.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
Cut-off Date: February 1, 2007.
Data File: The electronic data file prepared by the Company and
delivered to the Purchaser including the data fields set forth on Exhibit D,
with respect to the Mortgage Loans.
Deemed Material and Adverse Representation: Each representation and
warranty identified as such in Section 3.02 of this Agreement.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
Company in accordance with the terms of this Agreement and which is, in the case
of a substitution pursuant to Section 3.03, replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
First Remittance Date: March 19, 2007.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which is
added to the Index in order to determine the related Mortgage Interest Rate, as
set forth in the Mortgage Loan Schedule.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA"), (b) with an "annual percentage
rate" or total "points and fees" payable by the related Mortgagor (as each such
term is calculated under HOEPA) that exceed the thresholds set forth by HOEPA
and its implementing regulations, including 12 C.F.R. ss. 226.32(a)(1)(i) and
(ii), (c) classified as a "high cost home," "threshold," "covered," (excluding
New Jersey "Covered Home Loans" as that term is defined in clause (1) of the
definition of that term in the New Jersey Home Ownership Security Act of 2002
that were originated between November 26, 2003 and July 7, 2004), "high risk
home," "predatory" or similar loan under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(d) categorized as High Cost pursuant to the Standard & Poor's Glossary for File
Format for LEVELS(R) Version 5.7, Appendix E, revised July 1, 2006.
Index: With respect to any Adjustable Rate Mortgage Loan, the index
identified on the Mortgage Loan Schedule and set forth in the related Mortgage
Note for the purpose of calculating the interest thereon.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Only Mortgage Loan: A Mortgage Loan for which an
interest-only payment feature is allowed during the interest-only period set
forth in the related Mortgage Note.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the Mortgage
Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Lender Paid Mortgage Insurance Policy or LPMI Policy: A PMI Policy
for which the Company pays all premiums from its own funds, without
reimbursement therefore.
Letter of Credit: With respect to a Pledged Asset Mortgage Loan, a
guaranty issued to the Company by the Pledge Holder for the Pledged Value
Amount.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the Lifetime Rate Cap set forth as an amount per annum on the Mortgage Loan
Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the original loan amount of the Mortgage Loan at its origination
(unless otherwise indicated) to the Appraised Value of the Mortgaged Property.
Maximum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the Mortgage Loan Schedule and in the
related Mortgage Note which is the maximum interest rate to which the Mortgage
Interest Rate on such Mortgage Loan may be increased on any Adjustment Date.
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 Assignment of Mortgage has been registered with MERS on the MERS
System
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number used to identify mortgage
loans registered under MERS.
Minimum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth in the related Mortgage Note which is
the minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan may be decreased on any Adjustment Date.
Monthly Advance: The portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Company pursuant to Section
5.03 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest, or in the case of an Interest Only Mortgage Loan, payments of (i)
interest or (ii) principal and interest, as applicable, on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note or the Pledge Agreement
securing the Mortgage Note for a Cooperative Loan.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit C annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in Section 4.11.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note from time to time, in accordance with the provisions of the
Mortgage Note.
Mortgage Loan: An individual mortgage loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
documents listed on Exhibit C attached hereto.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Company's Mortgage Loan number; (2) the city,
state and zip code of the Mortgaged Property; (3) a code indicating whether the
Mortgaged Property is a single family residence, two-family residence,
three-family residence, four-family residence, a Cooperative Apartment, planned
unit development or condominium; (4) the Mortgage Interest Rate as of the
Cut-off Date; (5) the Mortgage Loan Remittance Rate as of the Cut-off Date; (6)
the Monthly Payment as of the Cut-off Date; (7) the Gross Margin; (8) the
original term to maturity; (9) the scheduled maturity date; (10) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (11)
the Loan-to-Value Ratio; (12) the next Adjustment Date immediately following the
Cut-off Date; (13) the lifetime Periodic Interest Rate Cap; (14) the Index; (15)
the type of Adjustable Rate Mortgage Loan; (16) the Maximum Mortgage Interest
Rate; (17) the first Adjustment Date immediately following origination; (18)
whether the Mortgage Loan is convertible or not; (19) a code indicating the
mortgage guaranty insurance company; and (20) the Servicing Fee Rate.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any addendum, attachment, allonge,
amendment, supplement or modification thereto.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the
Cooperative Apartment.
Mortgagor: The obligor on a Mortgage Note.
Non-Assigned Letter of Credit: A Letter of Credit in which the named
beneficiary is the Company.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and certified by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser.
Periodic Interest Rate Cap: As to each Adjustable Rate Mortgage
Loan, the maximum increase or decrease in the Mortgage Interest Rate on any
Adjustment Date pursuant to the terms of the Mortgage Note.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth as such on the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Pledge Account: With respect to a Pledged Asset Mortgage Loan, an
account that is managed by the Pledge Holder to secure a Letter of Credit.
Pledge Agreement: With respect to a Cooperative Loan, the specific
agreement creating a first lien on and pledge of the Cooperative Shares and the
appurtenant Proprietary Lease.
Pledge Holder: With respect to a Pledged Asset Mortgage Loan, the
entity that holds the Pledge Account, manages the Pledge Account and provides
the Letter of Credit.
Pledge Instruments: With respect to a Cooperative Loan, the Stock
Power, the Assignment of the Proprietary Lease and the Assignment of the
Mortgage Note and Pledge Agreement.
Pledged Asset Mortgage Loan: A Mortgage Loan for which the Mortgagor
has pledged financial assets as partial collateral for the Mortgage Loan, in
lieu of a cash down payment.
Pledged Value Amount: With respect to a Pledged Asset Mortgage Loan,
a minimum of 20% of the lower of the Purchase Price or Appraised Value of a
Mortgaged Property.
PMI Policy: A policy of primary mortgage guaranty insurance
evidenced by an electronic form and certificate number issued by a Qualified
Insurer, as required by this Agreement with respect to certain Mortgage Loans.
The premiums on a PMI Policy may be paid (i) by the Mortgagor or (ii) by the
Company from its own funds, without reimbursement, in the case of an LPMI
Policy. If the premiums are paid by the Company, the PMI Policy is an LPMI
Policy.
Prepayment Penalty: Payments penalties, fees or charges calculated
pursuant to the Mortgage Note and due pursuant to the terms of the Mortgage Loan
as the result of a Principal Prepayment of the Mortgage Loan, not otherwise due
thereon in respect of principal or interest.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The calendar month preceding the month
in which the related Remittance Date occurs.
Project: With respect to a Cooperative Loan, all real property owned
by the related Cooperative including the land, separate dwelling units and all
common areas.
Proprietary Lease: With respect to a Cooperative Loan, a lease on a
Cooperative Apartment evidencing the possessory interest of the Mortgagor in
such Cooperative Apartment.
Purchase Price: The purchase price for a mortgage loan pool as
specified in the Commitment Letter.
Purchaser: Xxxxxx Funding LLC, or its successor in interest or any
successor to the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Company,
who had no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation was not affected by
the approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Company, in accordance with underwriting
guidelines designated by the Company ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Company within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iv) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
Qualified Depository: A deposit account or accounts maintained with
a federal or state chartered depository institution the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated A-1 by Standard & Poor's Ratings Services or
Prime-1 by Xxxxx'x Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company) at
the time any deposits are held on deposit therein.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Company for a Deleted Mortgage Loan which must, on the date
of such substitution, (i) have an outstanding principal balance, after deduction
of all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) have a Mortgage Loan Remittance Rate not less
than, and not more than two percent (2%) greater, than the Mortgage Loan
Remittance Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan and
(v) comply with each representation and warranty set forth in Sections 3.01 and
3.02.
Rating Agency: Each of Fitch, Inc., Xxxxx'x Investors Service, Inc.,
Standard & Poor's Ratings Services and Dominion Bond Rating Service, Inc., or
any successor thereto.
Recognition Agreement: An agreement whereby a Cooperative and a
lender with respect to a Cooperative Loan (i) acknowledge that such lender may
make, or intends to make, such Cooperative Loan, and (ii) make certain
agreements with respect to such Cooperative Loan.
Reconstitution: Any Securitization Transaction, Agency Transfer or
Whole Loan Transfer.
Reconstitution Agreement: The agreement or agreements entered into
by the Company and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
serviced hereunder, in connection with a Whole Loan Transfer, Agency Transfer or
Securitization Transaction.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be reconstituted as part of an Agency
Transfer, Securitization Transaction or Whole Loan Transfer pursuant to Section
9.01 hereof. The Reconstitution Date shall be such date which the Purchaser
shall designate.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 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. 1506-1631 (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.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month, beginning with
the First Remittance Date.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf
of the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the
Company in the Commitment Letter, a price equal to (i) the Stated Principal
Balance of the Mortgage Loan as of the date on which such repurchase takes
place, plus (ii) interest on such Stated Principal Balance at the Mortgage Loan
Remittance Rate from the date on which interest has last been paid and
distributed to the Purchaser through the last day of the month in which such
repurchase takes place, less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (a) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (b)
an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities, the payments on which are determined primarily by
reference to one or more portfolios of residential mortgage loans consisting, in
whole or in part, of some or all of the Mortgage Loans.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Cooperative Loan and the related
Cooperative Lease.
Servicer: As defined in Section 9.01(e)(iii).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.08 (excluding the Company's obligation to pay the premiums on
LPMI Policies) and Section 4.10.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the outstanding principal balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
received. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
Servicing Fee Rate: 0.375% per annum per Mortgage Loan.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Company consisting of originals of all documents in the Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are delivered
to the Custodian pursuant to Section 2.03.
Servicing Officer: Any officer of the Company 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 Company to the
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously distributed to
the Purchaser with respect to the related Mortgage Loan representing payments or
recoveries of principal or advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Stock Certificate: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the Cooperative.
Stock Power: With respect to a Cooperative Loan, an assignment of
the Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
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 Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Subsidy Account: An account maintained by the Company specifically
to hold all Subsidy Funds to be applied to individual Subsidy Loans.
Subsidy Funds: With respect to any Subsidy Loans, funds contributed
by the employer of a Mortgagor in order to reduce the payments required from the
Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest
subsidy agreement pursuant to which the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided by the employer of the Mortgagor. Each Subsidy Loan will be identified
as such in the Data File.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Sections 3.03 and 8.01.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with First American Real Estate Tax Service, as described in Section
4.08 hereof.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Time$aver(R) Mortgage Loan: A Mortgage Loan which has been
refinanced pursuant to a Company program that allows a rate/term refinance of an
existing Company serviced loan with minimal documentation. [XXXXX -NEED TO
DISCUSS]
Transfer Date: In the event the Company is terminated as servicer of
a Mortgage Loan pursuant to Subsections 8.04, 10.01, 11.01(ii) or 11.02, the
date on which the Purchaser, or its designee, shall receive the transfer of
servicing responsibilities and begin to perform the servicing of such Mortgage
Loans, and the Company shall cease all servicing responsibilities.
Underwriting Guidelines: The underwriting guidelines of the Company,
a copy of which has been delivered by the Company to the Purchaser.
[Unverified Information: With respect to the Mortgage Loans
identified on the Data File, information regarding the Mortgagor's income,
source of income, or assets that is stated on the loan application by the
Mortgagor but not verified in the origination process, pursuant to the
applicable Underwriting Guidelines.] [XXXXX -NEED TO DISCUSS]
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans other than a Securitization Transaction or Agency Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage
Files; Maintenance of Servicing Files.
The Company, simultaneously with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and convey to the
Purchaser, without recourse, but subject to the terms of this Agreement, all the
right, title and interest of the Company in and to the Mortgage Loans. Pursuant
to Section 2.03, the Company has delivered the Mortgage File for each Mortgage
Loan to the Custodian.
The contents of each Mortgage File not delivered to the Custodian
are and shall be held in trust by the Company for the benefit of the Purchaser
as the owner thereof. The Company shall maintain a Servicing File consisting of
a copy of the contents of each Mortgage File and the originals of the documents
in each Mortgage File not delivered to the Custodian. The possession of each
Servicing File by the Company is at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company is in a custodial capacity only. Upon the sale of the
Mortgage Loans the ownership of each Mortgage Note, the related Mortgage and the
related Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only in
such custodial capacity. The Company shall release its custody of the contents
of any Servicing File only in accordance with written instructions from the
Purchaser, unless such release is required as incidental to the Company's
servicing of the Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan pursuant to Section 3.03 or 6.02. All such costs associated with
the release, transfer and re-delivery of any Mortgage Files and/or Servicing
Files shall be the responsibility of the Purchaser (unless in connection with
Section 3.03 or 6.02).
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Company agrees that it will cause the MERS System to indicate that
such Mortgage Loan has been assigned by the Company to the Purchaser in
accordance with this Agreement by including (or deleting, in the case of a
Mortgage Loan repurchased in accordance with this Agreement) in such computer
files the information required by the MERS System to identify the Purchaser as
the beneficial owner of such Mortgage Loan.
Section 2.02 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser all
rights arising out of the Mortgage Loans, including, but not limited to, all
funds received on or in connection with the Mortgage Loans, shall be received
and held by the Company in trust for the benefit of the Purchaser as owner of
the Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the supervision
of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the Company.
The Company shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular, the
Company shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1968, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by Xxxxxx Mae or Xxxxxxx Mac
and records of periodic inspections as required by Section 4.13. To the extent
that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the Xxxxxx
Mae or Xxxxxxx Mac Selling and Servicing Guide, as amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and regulations.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transferee of a Mortgage Loan shall
be recognized by the Company hereunder unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Company shall be
under no obligation to deal with any Person with respect to this Agreement or
the Mortgage Loans unless the books and records show such Person as the owner of
the Mortgage Loan. The Purchaser may, subject to the terms of this Agreement,
sell and transfer one or more of the Mortgage Loans. The Purchaser shall advise
the Company of the transfer. Upon receipt of notice of the transfer, the Company
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall be
received by the Company no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Company's duties to remit and report as required by Section 5 shall
begin with the next Due Period.
The Company must have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
must be capable of evaluating and monitoring the overall quality of the it's
loan production and servicing activities. The program is to ensure that the
Mortgage Loans are originated and serviced in accordance with prudent mortgage
banking practices and accounting principles; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
Section 2.03 Custodial Agreement; Delivery of Documents.
The Company has delivered to the Custodian those Mortgage Loan
Documents as required by this Agreement with respect to each Mortgage Loan.
The Custodian has certified its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to this Agreement, as evidenced by
the trust receipt or initial certification of the Custodian in the form annexed
to the Custodial Agreement. The Purchaser will be responsible for the fees and
expenses of the Custodian.
The Company shall be responsible for paying any costs in connection
with recording the initial Assignment of Mortgage, if necessary or at the
direction of the Purchaser. The Purchaser shall be responsible for paying any
costs in connection with any subsequent recordings for the Assignments of
Mortgage.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within one
(1) week of their execution, provided, however, that the Company shall provide
the Custodian with a certified true copy of any such document submitted for
recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within sixty (60) days of its submission for recordation.
In the event any document required to be delivered to the Custodian
in the Custodial Agreement, including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not so
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 90 days following the Closing Date (other than with
respect to the Assignments of Mortgage which shall be delivered to the Custodian
in blank and recorded subsequently by the Purchaser or its designee), and in the
event that the Company does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Company at the price and in the manner specified in Section 3.03. The foregoing
repurchase obligation shall not apply in the event that the Company cannot
deliver an original document submitted for recordation to the appropriate public
recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided that the Company shall
instead deliver a recording receipt of such recording office or, if such
recording receipt is not available, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
The Company shall pay all initial recording fees, if any, for the
assignments of mortgage and any other fees or costs in transferring all original
documents to the Custodian or, upon written request of the Purchaser, to the
Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's designee
shall be responsible for recording the Assignments of Mortgage and shall be
reimbursed by the Company for the costs associated therewith pursuant to the
preceding sentence.
Prior to Company's receipt of the Purchase Price, as adjusted
pursuant to the Commitment Letter, the Purchaser shall cause the Custodian to
act as bailee for the sole and exclusive benefit of the Company pursuant to the
Custodial Agreement and act only in accordance with Company's instructions. Upon
the Company's receipt of the Purchase Price, as adjusted pursuant to the
Commitment Letter, the Company shall provide notification to the Custodian to
release the ownership of the Mortgage Loan Documents specified above to the
Purchaser. Such notification shall be in a form of a written notice by facsimile
or other electronic media, with a copy sent to the Purchaser. Subsequent to such
release, such Mortgage Loan Documents shall be retained by the Custodian for the
benefit of the Purchaser. All Mortgage Loan Documents related to Mortgage Loans
not purchased by the Purchaser on the Closing Date shall be maintained by the
Custodian for the benefit of the Company and shall be returned to the Company
within two (2) Business Days after the Closing Date.
In the event that new, replacement, substitute or additional Stock
Certificates are issued with respect to existing Cooperative Shares, the Company
immediately shall deliver to the Custodian the new Stock Certificates, together
with the related Stock Powers in blank. Such new Stock Certificates shall be
subject to the related Pledge Instruments and shall be subject to all of the
terms, covenants and conditions of this Agreement.
Section 2.04 Examination of Mortgage Files.
Prior to the Closing Date, the Company shall (a) deliver to the
Purchaser in escrow, for examination, the Mortgage File for each Mortgage Loan,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the Mortgage Files available to the Purchaser for examination
at the Company's offices or such other location as shall otherwise be agreed
upon by the Purchaser and the Company. Such examination may be made by the
Purchaser at any time before or after the Closing Date or by any prospective
purchaser of the Mortgage Loans from the Purchaser, at any time after the
Closing Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted or
has failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief or remedy as provided under this
Agreement.
Section 2.05 Representations, Warranties and Agreements of Company.
The Company agrees and acknowledges that it shall, as a condition to
the consummation of the transactions contemplated hereby, make the
representations and warranties specified in Section 3.01 and 3.02 of this
Agreement, as of the Closing Date. The Company, without conceding that the
Mortgage Loans are securities, hereby makes the following additional
representations, warranties and agreements which shall be deemed to have been
made as of the Closing Date:
(a) neither the Company nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loans, any
interest in any Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of any
Mortgage Loans, any interest in any Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to any Mortgage Loans,
any interest in any Mortgage Loans or any other similar security with, any
Person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the Securities Act or
which would render the disposition of any Mortgage Loans a violation of Section
5 of the Securities Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any Person to act, in such
manner with respect to the Mortgage Loans; and
(b) the Company has not dealt with any broker or agent or anyone
else who might be entitled to a fee or commission in connection with this
transaction other than the Purchaser.
Section 2.06 [Reserved].
Section 2.07 Closing.
The closing for the purchase and sale of the Mortgage Loans, shall
take place on the Closing Date. At the Purchaser's option, the closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree; or
conducted in Person, at such place as the parties shall agree.
The closing shall be subject to each of the following conditions:
(a) at least two Business Days prior to the Closing Date, the
Company shall deliver to the Purchaser a magnetic diskette, or transmit by
modem, a listing on a loan level basis of the necessary information to compute
the Purchase Price of the Mortgage Loans delivered on such Closing Date
(including accrued interest), and prepare a Mortgage Loan Schedule;
(b) all of the representations and warranties of the Company under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred which, with notice or the passage of time, would constitute
an Event of Default under this Agreement;
(c) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents, in such forms as are
agreed upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the respective terms thereof;
(d) the Company shall have delivered and released to the Custodian
under this Agreement all documents required pursuant to this Agreement; and
(e) all other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Company on the Closing Date the Purchase Price by wire transfer of immediately
available funds to the account designated by the Company.
Section 2.08 Closing Documents.
With respect to the Mortgage Loans, the closing documents shall
consist of fully executed originals of the following documents:
(a) this Agreement, dated as of the Cut-off Date, in two
counterparts;
(b) the Custodial Agreement, in three counterparts, in the form
attached as Exhibit B to this Agreement;
(c) the Mortgage Loan Schedule, one copy to be attached to each
counterpart of this Agreement;
(d) a trust receipt, as required under the Custodial Agreement;
(e) an Opinion of Counsel of the Company, in the form of Exhibit E
hereto
(f) an Officer's Certificate of the Company, in the form of Exhibit
J hereto; including all attachments thereto; and
(g) the Commitment Letter.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that, as
of the Closing Date:
(a) Due Organization and Authority. The Company is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Company, and in any event the Company is in compliance with the
laws of any such state to the extent necessary to ensure the enforceability of
the related Mortgage Loan and the servicing of such Mortgage Loan in accordance
with the terms of this Agreement; the Company has the full power and authority
to execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Company and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Company; and all requisite action has been taken by the
Company to make this Agreement valid and binding upon the Company in accordance
with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Company, who is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Company pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, articles of
incorporation or by-laws or any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Company or its property is subject, or impair the ability
of the Purchaser to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans;
(d) Ability to Service. The Company is an approved seller/servicer
of conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Company
is a HUD approved mortgagee and is in good standing to sell mortgage loans to
and service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make the Company unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements or which would require notification to either Xxxxxx
Mae or Xxxxxxx Mac;
(e) Reasonable Servicing Fee. The Company acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Company, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(f) Ability to Perform. The Company does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Company is solvent and the sale of the
Mortgage Loans will not cause the Company to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of the
Company's creditors;
(g) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Company which, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the Company,
or in any material impairment of the right or ability of the Company to carry on
its business substantially as now conducted, or in any material liability on the
part of the Company, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be contemplated
herein, or which would be likely to impair materially the ability of the Company
to perform under the terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company with
this Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the Closing Date;
(i) Selection Process. The Mortgage Loans were selected from among
the outstanding fixed rate, one- to four-family mortgage loans in the Company's
mortgage banking portfolio at the Closing Date as to which the representations
and warranties set forth in Section 3.02 could be made and such selection was
not made in a manner so as to affect adversely the interests of the Purchaser;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
(k) Sale Treatment. The Company intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Company and the
Company has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for accounting and tax purposes;
(l) No Material Change. There has been no material adverse change in
the business, operations, financial condition or assets of the Company since the
date of the Company's most recent financial statements;
(m) No Brokers' Fees. The Company has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans;
(n) MERS. The Company is a member of MERS in good standing;
(o) Company's Origination. The Company's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(p) Financial Statements. The Company has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Company and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. In addition, the Company has delivered information as to its loan
gain and loss experience in respect of foreclosures and its loan delinquency
experience for the immediately preceding three-year period, in each case with
respect to mortgage loans owned by it and such mortgage loans serviced for
others during such period, and all such information so delivered shall be true
and correct in all material respects. There has been no change in the business,
operations, financial condition, properties or assets of the Company since the
date of the Company's financial statements that would have a material adverse
effect on its ability to perform its obligations under this Agreement. The
Company has completed any forms requested by the Purchaser in a timely manner
and in accordance with the provided instructions;
(q) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, shall be
delivered to the Custodian all in compliance with the specific requirements of
the Custodial Agreement. With respect to each Mortgage Loan, the Company will be
in possession of a complete Mortgage File in compliance with Exhibit A hereto,
except for such documents as will be delivered to the Custodian;
(r) Owner of Record. The Company is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon recordation
the Company will be the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, and upon the sale of the Mortgage Loans to the
Purchaser, the Company will retain the Mortgage Files with respect thereto in
trust only for the purpose of servicing and supervising the servicing of each
Mortgage Loan;
(s) Reasonable Purchase Price. The consideration received by the
Company upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans;
(t) Seasoned Mortgage Loans. The Company (i) currently operates or
actively participates in an on-going and active program or business (A) to
originate Mortgages, (B) to make periodic purchases of Mortgage Loans from
originators or other sellers, or (C) to issue or purchase securities or bonds
supported by the Mortgage Loans, with a portion of the proceeds generated by
such program or business being used to purchase or originate Mortgage Loans made
to Mortgagors who are: (1) low-income families (families with incomes of 80% or
less of area median income), living in low-income areas (a census tract or block
numbering area in which the median income does not exceed 80% of the area median
income) or (2) very low-income families (families with incomes of 60% or less of
area median income); and (ii) agrees that Xxxxxxx Mac, for a period of two (2)
years following the Closing Date, may contact the Company to confirm that it
continues to operate or actively participate in the mortgage program or business
and to obtain other nonproprietary information about the Company's activities
that may assist Xxxxxxx Mac in completing its regulatory reporting requirements.
The Company shall make reasonable efforts to provide such information to Xxxxxxx
Mac. This representation and warranty is a Deemed Material and Adverse
Representation;
(u) Nonpetition. The Company shall not institute against, or join
any other Person in instituting against, the Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the Closing Date; and
(v) Insured Depository Institution Representations. The Company is
an "insured depository institution" as that term is defined in Section
1813(c)(2) of Title 12 of the United States Code, as amended, and accordingly,
the Company makes the following additional representations and warranties:
(i) This Agreement between the Purchaser and the Company conforms to
all applicable statutory and regulatory requirements; and
(ii) This Agreement is (1) executed contemporaneously with the
agreement reached by the Purchaser and the Company, (2) approved by a
specific corporate or banking association resolution by the Company's
board of directors, which approval shall be reflected in the minutes of
said board, and (3) an official record of the Company. A copy of such
resolution, certified by a vice president or higher officer of the Company
has been provided to the Purchaser.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
As to each Mortgage Loan, the Company hereby represents and warrants
to the Purchaser that as of the Closing Date:
(a) Mortgage Loans as Described. The information set forth in the
Mortgage Loan Schedule attached hereto as Exhibit A and the information
contained on the electronic Data File delivered to the Purchaser is true and
correct; [provided that the Company makes no representation or warranty as to
the accuracy of Unverified Information]; [XXXXX - LET'S DISCUSS]
(b) Payments Current. All payments required to be made up to the
Cut-off Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment under any Mortgage Loan has been thirty (30)
days delinquent more than one (1) time within twelve (12) months prior to the
Closing Date;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgages, and all taxes, governmental assessments, insurance
premiums, leasehold payments, water, sewer and municipal charges, which
previously became due and owing have been paid, or an escrow of funds has been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The Company
has not advanced funds, or induced, solicited or knowingly received any advance
of funds by a party other than the Mortgagor, directly or indirectly, the
payment of any amount required under the Mortgage Loan, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is earlier, to the day which precedes by one
month the Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect from
the date of origination, except by a written instrument which has been recorded
or registered with the MERS System, if necessary, to protect the interests of
the Purchaser and maintain the lien priority of the Mortgage and which has been
delivered to the Custodian. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and the
title insurer, to the extent required by the policy, and its terms are reflected
on the Mortgage Loan Schedule. No Mortgagor has been released, in whole or in
part, except in connection with an assumption agreement approved by the issuer
of any related PMI Policy and the title insurer, to the extent required by the
policy, and which assumption agreement is part of the Mortgage File delivered to
the Custodian and the terms of which are reflected in the Mortgage Loan
Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated;
(f) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
satisfaction, release, cancellation, subordination or rescission. The Company
has not waived the performance by the Mortgagor of any action, if the
Mortgagor's failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action or
inaction by the Mortgagor;
(g) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and related documents are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties). All parties to the Mortgage Note and the Mortgage had legal capacity
to enter into the Mortgage Loan and to execute and deliver the Mortgage Note and
the Mortgage, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties;
With respect to each Cooperative Loan, the Mortgage Note, the
Mortgage, the Pledge Agreement, and related documents are genuine, and each is
the legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note, the Mortgage, the
Pledge Agreement, the Proprietary Lease, the Stock Power, Recognition Agreement
and the Assignment of Proprietary Lease had legal capacity to enter into the
Mortgage Loan and to execute and deliver such documents, and such documents have
been duly and properly executed by such parties;
(h) No Fraud. No error, omission, misrepresentation, negligence,
fraud or similar occurrence with respect to a Mortgage Loan has taken place on
the part of the Company, or the Mortgagor (except with respect to the accuracy
of Unverified Information), or to the best of the Company's knowledge, any
appraiser, any builder, or any developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan;
(i) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection
and privacy, equal credit opportunity, disclosure and all predatory, abusive and
fair lending laws applicable to the Mortgage Loan have been complied with. This
representation and warranty is a Deemed Material and Adverse Representation;
(j) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a contiguous parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual condominium
unit in a condominium project or a Cooperative Apartment, or an individual unit
in a planned unit development or a townhouse, provided, however, that any
condominium project or planned unit development shall conform to the applicable
Xxxxxx Xxx or Xxxxxxx Mac requirements, or the Underwriting Guidelines,
regarding such dwellings, and no residence or dwelling is a mobile home or
manufactured dwelling. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Cooperative Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes;
(k) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected first lien on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Mortgage is
subject only to:
(1) the lien of current real property taxes and
assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record as of
the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (i) referred to or otherwise considered
in the appraisal made for the originator of the Mortgage Loan
and (ii) which do not adversely affect the Appraised Value of
the Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of
the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related
Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting and enforceable first lien and first priority
security interest on the property described therein and the Company has full
right to sell and assign the same to the Purchaser;
With respect to each Cooperative Loan, each Pledge Agreement creates
a valid, enforceable and subsisting first security interest in the Cooperative
Shares and Proprietary Lease, subject only to (i) the lien of the related
Cooperative for unpaid assessments representing the Mortgagor's pro rata share
of the Cooperative's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (ii) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated or
otherwise subject to the lien of any mortgage on the Project;
(l) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, except for escrows established or created due to
seasonal weather conditions, and there is no requirement for future advances
thereunder. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is
not entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Consolidation of Future Advances. Any future advances made prior
to the Cut-off Date, have been consolidated with the outstanding principal
amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term reflected
on the Mortgage Loan Schedule. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
mortgagee's consolidated interest or by other title evidence acceptable to
Xxxxxx Mae or Xxxxxxx Mac; the consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan; the Company shall not make
future advances after the Cut-off Date;
(n) Ownership. The Company is the sole owner of record and holder of
the Mortgage Loan and the related Mortgage Note and the Mortgage are
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Company will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser or
the Purchaser's designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan and the
related Mortgage Note and the Mortgage are not assigned or pledged, and the
Company has good, indefeasible and marketable title thereto and has full right
and authority to transfer and sell the Mortgage Loan to the Purchaser. The
Company is transferring the Mortgage Loan free and clear of any and all
encumbrances, liens, pledges, equities, participation interests, claims, charges
or security interests of any nature encumbering such Mortgage Loan and following
the sale of each Mortgage Loan, the Purchaser will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest. The Company intends to relinquish all rights
to possess, control and monitor the Mortgage Loan. After the Closing Date, the
Company will have no right to modify or alter the terms of the sale of the
Mortgage Loan and the Company will have no obligation or right to repurchase the
Mortgage Loan or substitute another Mortgage Loan, except as provided in this
Agreement;
(o) Origination/Doing Business. The Mortgage Loan was originated by
a savings and loan association, a savings bank, a commercial bank, a credit
union, an insurance company, or similar institution that is supervised and
examined by a federal or state authority or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) organized under the
laws of such state, or (3) qualified to do business in such state, or (4)
federal savings and loan associations or national banks having principal offices
in such state, or (5) not doing business in such state;
(p) LTV, PMI Policy. Each Mortgage Loan has an LTV as specified on
the Mortgage Loan Schedule. Except as set forth on the Data File, if the LTV of
the Mortgage Loans was greater than 80% at the time of origination, a portion of
the unpaid principal balance of the Mortgage Loan is and will be insured as to
payment defaults by a PMI Policy. If the Mortgage Loan is insured by a PMI
Policy which is not an LPMI Policy, the coverage will remain in place until (i)
the LTV decreases to 78% or (ii) the PMI Policy is otherwise terminated pursuant
to the Homeowners Protection Act of 1998, 12 U.S.C. ss. 4901, et seq. Any PMI
Policy in effect covers the related Mortgage Loan for the life of such Mortgage
Loan. All provisions of such PMI Policy have been and are being complied with,
such policy is in full force and effect, and all premiums due thereunder have
been paid. The Qualified Insurer has a claims paying ability acceptable to
Xxxxxx Mae or Xxxxxxx Mac. No action, inaction, or event has occurred and no
state of facts exists that has, or will result in the exclusion from, denial of,
or defense to coverage. Any Mortgage Loan subject to a PMI Policy or an LPMI
Policy obligates the Mortgagor or the Company to maintain the PMI Policy or LPMI
Policy, as applicable, and to pay all premiums and charges in connection
therewith. The Mortgage Interest Rate for the Mortgage Loan as set forth on the
Mortgage Loan Schedule is net of any such insurance premium if the related PMI
Policy is lender-paid;
(q) Title Insurance. With respect to a Mortgage Loan which is not a
Cooperative Loan, the Mortgage Loan is covered by an ALTA lender's title
insurance policy or with respect to any Mortgage Loan, for which the related
Mortgaged Property is located in California a CLTA lender's title insurance
policy, (or in the case of any Mortgage Loan secured by a Mortgaged Property
located in a jurisdiction where such policies are generally not available, an
opinion of counsel of the type customarily rendered in such jurisdiction in lieu
of title insurance) or other generally acceptable form of policy of insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified
to do business in the jurisdiction where the Mortgaged Property is located,
insuring the Company, its successors and assigns, as to the first priority lien
of the Mortgage in the original principal amount of the Mortgage Loan (or to the
extent a Mortgage Note provides for negative amortization, the maximum amount of
negative amortization in accordance with the Mortgage), subject only to the
exceptions contained in clauses (1), (2) and (3) of Paragraph (k) of this
Section 3.02, and in the case of Adjustable Rate Mortgage Loans, against any
loss by reason of the invalidity or unenforceability of the lien resulting from
the provisions of the Mortgage providing for adjustment to the Mortgage Interest
Rate and Monthly Payment. Where required by state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Company, it successors and
assigns, are the sole insureds of such lender's title insurance policy, and such
lender's title insurance policy is valid and remains in full force and effect
and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage, including
the Company, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy, including without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Company;
(r) No Defaults. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and neither the Company nor any of its Affiliates nor any of their
respective predecessors have waived any default, breach, violation or event of
acceleration;
(s) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage which are not insured against
by the title insurance policy referenced in Paragraph (q) above;
(t) Location of Improvements; No Encroachments. Except as insured
against by the title insurance policy referenced in Paragraph (q) above, all
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(u) Payment Terms. Except with respect to the Interest Only Mortgage
Loans, principal payments commenced no more than sixty (60) days after the funds
were disbursed to the Mortgagor in connection with the Mortgage Loan. The
Mortgage Interest Rate as well as, in the case of an Adjustable Rate Mortgage
Loan, the Lifetime Rate Cap and the Periodic Cap are as set forth on the
Mortgage Loan Schedule. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient (except with respect
to Balloon Loans) to amortize the Mortgage Loan fully by the stated maturity
date set for in the Mortgage Note over an original term to maturity of not more
than thirty (30) years from commencement of amortization. With respect to each
Balloon Loan, the Mortgage Loan is payable in equal monthly installments of
principal and interest based on a fifteen (15), thirty (30) or forty (40) year
amortization schedule, as set forth in the related Mortgage Note, and a final
lump sum payment substantially greater than the preceding Monthly Payment is
required which is sufficient to amortize the remaining principal balance of the
Balloon Loan. No Balloon Loan has an original stated maturity of less than seven
(7) years. As to each Adjustable Rate Mortgage Loan on each applicable
Adjustment Date, the Mortgage Interest Rate will be adjusted to equal the sum of
the Index plus the applicable Gross Margin, rounded up or down to the nearest
multiple of 0.125% indicated by the Mortgage Note; provided that the Mortgage
Interest Rate will not increase or decrease by more than the Periodic Interest
Rate Cap on any Adjustment Date, and will in no event exceed the maximum
Mortgage Interest Rate or be lower than the minimum Mortgage Interest Rate
listed on the Mortgage Note for such Mortgage Loan. As to each Adjustable Rate
Mortgage Loan that is not an Interest Only Mortgage Loan, each Mortgage Note
requires a monthly payment which is sufficient, during the period prior to the
first adjustment to the Mortgage Interest Rate, to fully amortize the
outstanding principal balance as of the first day of such period over the then
remaining term of such Mortgage Note and to pay interest at the related Mortgage
Interest Rate. As to each Adjustable Rate Mortgage Loan, if the related Mortgage
Interest Rate changes on an Adjustment Date or, with respect to an Interest Only
Mortgage Loan, on an Adjustment Date following the related interest-only period,
the then outstanding principal balance will be reamortized over the remaining
life of such Mortgage Loan. No Adjustable Rate Mortgage Loan contains terms or
provisions which would result in negative amortization;
(v) Customary Provisions. The Mortgage and related Mortgage Note
contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(i) in the case of a Mortgage designated as a deed of trust, by trustee's sale,
and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a
Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan will be able
to deliver good and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere with
the right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage;
(w) Occupancy of the Mortgaged Property. As of the Closing Date, the
Mortgaged Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. Unless otherwise specified on the Mortgage Loan
Schedule, the Mortgagor represented at the time of origination of the Mortgage
Loan that the Mortgagor would occupy the Mortgaged Property as the Mortgagor's
primary residence;
(x) No Additional Collateral. Except in the case of a Pledged Asset
Mortgage Loan and as indicated on the Data File, the Mortgage Note is not and
has not been secured by any collateral, pledged account or other security except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in Paragraph (k)
above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the mortgagee to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(z) Acceptable Investment. The Company has no knowledge of any
circumstances or conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that can reasonably
be expected to cause private institutional investors to regard the Mortgage Loan
as an unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan;
(aa) Transfer of Mortgage Loans. If the Mortgage Loan is not a MERS
Mortgage Loan, the Assignment of Mortgage, upon the insertion of the name of the
assignee and recording information, is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located;
(bb) Mortgaged Property Undamaged. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair.
(cc) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used with
respect to the Mortgage Loan have been in accordance with Accepted Servicing
Practices, and have been in all material respects legal and proper. With respect
to escrow deposits and Escrow Payments, all such payments are in the possession
of the Company and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law and
the provisions of the related Mortgage Note and Mortgage. An escrow of funds is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Company have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Company
executed and delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited;
(dd) No Condemnation. There is no proceeding pending or to the best
of the Company's knowledge threatened for the total or partial condemnation of
the related Mortgaged Property;
(ee) The Appraisal. The Mortgage Loan Documents include an appraisal
of the related Mortgaged Property signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser, duly appointed by the Company who had
no interest, direct or indirect, in the Mortgaged Property or in any loan made
on the security thereof; and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan, and the appraisal and the appraiser both
satisfy the applicable requirements of Title XI of the Financial Institution
Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was originated [As to
each Time$aver(R) Mortgage Loan, the appraisal may be from the original of the
existing Company-serviced loan, which was refinanced via such Time$aver(R)
Mortgage Loan];
(ff) Insurance. The Mortgaged Property securing each Mortgage Loan
is insured by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by
fire and such hazards as are covered under a standard extended coverage
endorsement and such other hazards as are customary in the area where the
Mortgaged Property is located pursuant to insurance policies conforming to the
requirements of Section 4.10, in an amount which is at least equal to the lesser
of (i) 100% of the insurable value, on a replacement cost basis, of the
improvements on the related Mortgaged Property and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such insurance shall be sufficient to prevent the application to
the Mortgagor or the loss payee of any coinsurance clause under the policy. If
the Mortgaged Property is a condominium unit, it is included under the coverage
afforded by a blanket policy for the project. If the improvements on the
Mortgaged Property are in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(A) the outstanding principal balance of the Mortgage Loan, (B) the full
insurable value and (C) the maximum amount of insurance which was available
under the Flood Disaster Protection Act of 1968, as amended. All individual
insurance policies contain a standard mortgagee clause naming the Company and
its successors and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain a hazard
insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or regulation, the
Mortgagor has been given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a "master" or "blanket" hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance policy
is the valid and binding obligation of the insurer, is in full force and effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement. The
Company has not acted or failed to act and has no knowledge of the Mortgagor's
having engaged in, any act or omission which would impair the coverage of any
such insurance policy, the benefits of the endorsement provided for herein, or
the validity and binding effect of either including, without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and enforceability thereof, and no such unlawful
items have been received, retained or realized by the Company;
(gg) Servicemembers Civil Relief Act. The Mortgagor has not notified
the Company, and the Company has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers Civil Relief Act, as amended or other
similar state statute;
(hh) No Graduated Payments or Contingent Interests. The Mortgage
Loan is not a graduated payment mortgage loan and the Mortgage Loan does not
have a shared appreciation or other contingent interest feature;
(ii) No Construction Loans. No Mortgage Loan was made in connection
with (i) the construction or rehabilitation of a Mortgage Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property other than a
construction-to-permanent loan which has converted to a permanent Mortgage Loan;
(jj) Underwriting. Each Mortgage Loan was underwritten in accordance
with the Underwriting Guidelines and the Mortgage Note and Mortgage are on forms
acceptable to Xxxxxxx Mac or Xxxxxx Mae;
(kk) No Bankruptcy. No Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated and as of the Closing Date, the Company has not received notice that
any Mortgagor is a debtor under any state or federal bankruptcy or insolvency
proceeding;
(ll) The Mortgagor. The Mortgagor is one or more natural Persons
and/or an Illinois land trust or a "living trust" and such "living trust" is in
compliance with the Underwriting Guidelines;
(mm) Interest Calculation. Interest on each Mortgage Loan is
calculated on the basis of a 360-day year consisting of twelve 30-day months;
(nn) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving the Mortgaged Property in which compliance with
any environmental law, rule or regulation is an issue; there is no violation of
any environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
the use and enjoyment of the Mortgaged Property;
(oo) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. This representation and warranty is a Deemed Material and Adverse
Representation;
(pp) Anti-Money Laundering Laws. The Company has complied with all
applicable anti-money laundering laws, regulations and executive orders,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Company has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. Additionally, no
Mortgage Loan is subject to nullification pursuant to Executive Order 13224 (the
"Executive Order") or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of Treasury (the "OFAC
Regulations") or in violation of the Executive Order or the OFAC Regulations;
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a "blocked person" for purposes of the OFAC
Regulations;
(qq) Single Premium Credit Life Insurance. No Mortgagor was required
to purchase any single premium credit insurance policy (e.g., life, mortgage,
disability, property, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, mortgage disability, property, accident, unemployment or health insurance)
in connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(rr) Buydown Mortgage Loans. With respect to each Mortgage Loan that
is a Buydown Mortgage Loan:
(i) On or before the date of origination of such Mortgage Loan, the
Company and the Mortgagor, or the Company, the Mortgagor and the seller of
the Mortgaged Property or a third party entered into a Buydown Agreement.
The Buydown Agreement provides that the seller of the Mortgaged Property
(or third party) shall deliver to the Company temporary Buydown Funds in
an amount equal to the aggregate undiscounted amount of payments that,
when added to the amount the Mortgagor on such Mortgage Loan is obligated
to pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due on such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor to qualify
for the Buydown Mortgage Loan. The effective interest rate of a Buydown
Mortgage Loan if less than the interest rate set forth in the related
Mortgage Note will increase within the Buydown Period as provided in the
related Buydown Agreement so that the effective interest rate will be
equal to the interest rate as set forth in the related Mortgage Note. The
Buydown Mortgage Loan satisfies the requirements of the Underwriting
Guidelines;
(ii) The Mortgage and Mortgage Note reflect the permanent payment
terms rather than the payment terms of the Buydown Agreement. The Buydown
Agreement provides for the payment by the Mortgagor of the full amount of
the Monthly Payment on any Due Date that the Buydown Funds are available.
The Buydown Funds were not used to reduce the original principal balance
of the Mortgage Loan or to increase the Appraised Value of the Mortgage
Property when calculating the Loan-to-Value Ratios for purposes of the
Agreement and, if the Buydown Funds were provided by the Company and if
required under the Underwriting Guidelines, the terms of the Buydown
Agreement were disclosed to the appraiser of the Mortgaged Property;
(iii) The Buydown Funds may not be refunded to the Mortgagor unless
the Mortgagor makes a principal payment for the outstanding balance of the
Mortgage Loan;
(iv) As of the date of origination of the Mortgage Loan, the
provisions of the related Buydown Agreement complied with the requirements
of Xxxxxx Xxx or Xxxxxxx Mac guidelines or the Underwriting Guidelines
regarding buydown agreements.
(ss) Cooperative Loans. With respect to each Cooperative Loan:
(i) The Cooperative Shares are held by a Person as a
tenant-stockholder in a Cooperative. Each original UCC financing
statement, continuation statement or other governmental filing or
recordation necessary to create or preserve the perfection and priority of
the first lien and security interest in the Cooperative Loan and
Proprietary Lease has been timely and properly made. Any security
agreement, chattel mortgage or equivalent document related to the
Cooperative Loan and delivered to Purchaser or its designee establishes in
Purchaser a valid and subsisting perfected first lien on and security
interest in the Mortgaged Property described therein, and Purchaser has
full right to sell and assign the same. The Proprietary Lease term expires
no less than five years after the Mortgage Loan term or such other term
acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(ii) A Cooperative Lien Search has been made by a company competent
to make the same which company is acceptable to Xxxxxx Mae or Xxxxxxx Mac
and qualified to do business in the jurisdiction where the Cooperative is
located and such search has not found anything which would materially and
adversely affect the Cooperative Loan;
(iii) (a) The term of the related Proprietary Lease is not less than
the terms of the Cooperative Loan; (b) there is no provision in any
Proprietary Lease which requires the Mortgagor to offer for sale the
Cooperative Shares owned by such Mortgagor first to the Cooperative; (c)
there is no prohibition in any Proprietary Lease against pledging the
Cooperative Shares or assigning the Proprietary Lease; (d) the Cooperative
has been created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project is
located and qualifies as a cooperative housing corporation under Section
210 of the Code; (e) the Recognition Agreement is on a form published by
Aztech Document Services, Inc. or includes similar provisions; (f) the
Cooperative has good and marketable title to the Project, and owns the
Project either in fee simple or under a leasehold that complies with the
requirements of the Xxxxxx Mae or Xxxxxxx Mac guidelines or the
Underwriting Guidelines; such title is free and clear of any adverse liens
or encumbrances, except the lien of any blanket mortgage; (g) the stock
that is pledged as security for the Mortgage Loan is held by a person as a
"tenant-stockholder" and the related cooperative corporation that owns
title to the related cooperative apartment building is a "cooperative
housing corporation," each within the meaning of Section 216 of the Code
and (h) there is no prohibition against pledging the shares of the
cooperative corporation or assigning the Cooperative Lease;
(iv) The Company has the right under the terms of the Mortgage Note,
Pledge Agreement and Recognition Agreement to pay any maintenance charges
or assessments owed by the Mortgagor; and
(v) Each Stock Power (i) has all signatures guaranteed or (ii) if
all signatures are not guaranteed, then such Cooperative Shares will be
transferred by the stock transfer agent of the Cooperative if the Company
undertakes to convert the ownership of the collateral securing the related
Cooperative Loan.
(tt) Delivery of Mortgage Files. The Mortgage Loan Documents
required to be delivered by the Company have been delivered to the Custodian in
accordance with this Agreement. The Company is in possession of a complete, true
and accurate Mortgage File in compliance with Exhibit C, except for such
documents the originals of which have been delivered to the Custodian or for
such documents where the originals of which have been sent for recordation;
(uu) Credit Reporting. With respect to each Mortgage Loan, the
Company has furnished complete information on the related borrower credit files
to Equifax, Experian and Trans Union Credit Information Company, in accordance
with the Fair Credit Reporting Act and its implementing regulations. This
representation and warranty is a Deemed Material and Adverse Representation;
(vv) Pledged Asset Mortgage Loan. No Mortgage Loan is a Pledged
Asset Mortgage Loan;
(ww) Indiana. There is no Mortgage Loan that was originated on or
after January 1, 2005, which is a "high cost home loan" as defined under the
Indiana Home Loan Practices Act (I.C. 24-9).
(xx) Valid First Priority Security Interest. With respect to any
Cooperative Loan, the related Mortgage is a valid, subsisting, enforceable and
perfected, first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor's pro rata share of the related residential cooperative housing
corporation's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(yy) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Originator's Underwriting
Guidelines;
(zz) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(aaa) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on or
prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Company or by any
officer, director, or employee of the Company or any designee of the Company or
any corporation in which the Company or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(bbb) Disclosure Materials. The Mortgagor has executed a statement
to the effect that the Mortgagor has received all disclosure materials required
by, and the Company has complied with, all applicable law with respect to the
making of the Mortgage Loans. The Company shall maintain such statement in the
Mortgage File;
(ccc) Escrow Analysis. If applicable, with respect to each Mortgage,
the Company has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(ddd) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices;
(eee) No Failure to Cure Default. The Company has not received a
written notice of default of any senior mortgage loan related to the Mortgaged
Property which has not been cured;
(fff) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Company to the Purchaser, that Company has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage. The
Company shall hold the Purchaser harmless from any and all damages, losses,
costs and expenses (including attorney's fees) arising from disclosure of credit
information in connection with the Purchaser's secondary marketing operations
and the purchase and sale of mortgages or servicing rights thereto;
(ggg) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments that
have become due have been paid; and (7) the use of leasehold estates for
residential properties is a widely accepted practice in the jurisdiction in
which the Mortgaged Property is located;
(hhh) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on the
Mortgage Loan Schedule. With respect to each Mortgage Loan that has a Prepayment
Penalty feature, each such Prepayment Penalty is enforceable and will be
enforced by the Company for the benefit of the Purchaser, and each Prepayment
Penalty is permitted pursuant to federal, state and local law. Each such
Prepayment Penalty is in an amount not more than the maximum amount permitted
under applicable law and no such Prepayment Penalty may provide for a term in
excess of five (5) years with respect to Mortgage Loans originated prior to
October 1, 2002. With respect to Mortgage Loans originated on or after October
1, 2002, the duration of the Prepayment Penalty period shall not exceed three
(3) years from the date of the Mortgage Note unless the Mortgage Loan was
modified to reduce the Prepayment Penalty period to no more than three (3) years
from the date of the related Mortgage Note and the Mortgagor was notified in
writing of such reduction in Prepayment Penalty period. With respect to any
Mortgage Loan that contains a provision permitting imposition of a Prepayment
Penalty upon a prepayment prior to maturity: (i) the Mortgage Loan provides some
benefit to the Mortgagor (e.g., a rate or fee reduction) in exchange for
accepting such Prepayment Penalty, (ii) prior to the Mortgage Loan's
origination, the Mortgagor was offered the option of obtaining a mortgage loan
that did not require payment of such a penalty, (iii) the Prepayment Penalty was
adequately disclosed to the Mortgagor in the mortgage loan documents pursuant to
applicable state, local and federal law, and (iv) notwithstanding any state,
local or federal law to the contrary, the Company shall not impose such
Prepayment Penalty in any instance when the mortgage debt is accelerated or paid
off in connection with the workout of a delinquent Mortgage Loan or as a result
of the Mortgagor's default in making the Mortgage Loan payments. This
representation and warranty is a Deemed Material and Adverse Representation;
(iii) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(jjj) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by a provider chosen by the
Company and acceptable to the Purchaser in its sole discretion, and such
contract is transferable at no cost to the Purchaser or any Successor Servicer;
(kkk) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(lll) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Company, or is in the process of being recorded;
(mmm) Xxxxxx Mae Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of Xxxxxx Xxx Guides. This representation and warranty is
a Deemed Material and Adverse Representation;
(nnn) Mortgagor Selection. The Mortgagor was not encouraged or
required to select a Mortgage Loan product offered by the Company which is a
higher cost product designed for less creditworthy mortgagors, unless at the
time of the Mortgage Loan's origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan's requirements
and the Mortgagor's credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the
Company or any Affiliate of the Company. If, at the time of loan application,
the Mortgagor may have qualified for a lower-cost credit product then offered by
any mortgage lending Affiliate of the Company, the Company referred the related
Mortgagor's application to such Affiliate for underwriting consideration. For a
Mortgagor who seeks financing through a Mortgage Loan originator's higher-priced
subprime lending channel, the Mortgagor was directed towards or offered the
Mortgage Loan originator's standard mortgage line if the Mortgagor was able to
qualify for one of the standard products. This representation and warranty is a
Deemed Material and Adverse Representation;
(ooo) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely on the
extent of the related Mortgagor's equity in the collateral as the principal
determining factor in approving such extension of credit. The methodology
employed objective criteria such as the Mortgagor's income, assets and
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan's originator made a reasonable determination that at the time
of origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(ppp) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx Xxx
Guides and "points and fees" (x) include origination, underwriting, broker and
finder fees and charges that the mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the mortgagee or a third party, and (y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes and
insurance premiums, and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25% of the principal
amount of such Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(qqq) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. This representation and
warranty is a Deemed Material and Adverse Representation;
(rrr) Balloon Loans. No Balloon Loan has an original stated maturity
of less than seven (7) years;
(sss) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 requires the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction.
This representation and warranty is a Deemed Material and Adverse
Representation;
(ttt) No Prior Offer. The Mortgage Loan has not previously been
offered for sale;
(uuu) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first Interest
Rate Adjustment Date, a related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements stated in the
Mortgage Loan Documents; and
(vvv) Due-On-Sale. The Mortgage contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder.
Section 3.03 Repurchase.
It is understood and agreed that the representations and warranties
set forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans
to the Purchaser and the delivery of the Mortgage Loan Documents to the
Custodian and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Company or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser (or which
materially and adversely affects the interests of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within ninety (90) days of the earlier of either discovery by or
notice to the Company of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans, the Company
shall use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Company shall, at the Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. Notwithstanding
the above sentence, (i) within ninety (90) days after the earlier of either
discovery by, or notice to, the Company of any breach of the representation and
warranty set forth in clause (iii) of Section 3.02, the Company shall repurchase
such Mortgage Loan at the Repurchase Price and (ii) any breach of a Deemed
Material and Adverse Representation shall automatically be deemed to materially
and adversely affect the value of the Mortgage Loans or the interest of the
Purchaser therein. In the event that a breach shall involve any representation
or warranty set forth in Section 3.01, and such breach cannot be cured within
ninety (90) days of the earlier of either discovery by or notice to the Company
of such breach, all of the Mortgage Loans shall, at the Purchaser's option, be
repurchased by the Company at the Repurchase Price. However, if the breach shall
involve a representation or warranty set forth in Section 3.02 (other than the
representation and warranty set forth in clause (iii) of such Section or any
Deemed Material and Adverse Representation) and the Company discovers or
receives notice of any such breach within 120 days of the Closing Date, the
Company shall, if the breach cannot be cured, at the Purchaser's option and
provided that the Company has a Qualified Substitute Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan (a
"Deleted Mortgage Loan") and substitute in its place a Qualified Substitute
Mortgage Loan or Loans, provided that any such substitution shall be effected
not later than 120 days after the Closing Date. If the Company has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan within
ninety (90) days of the written notice of the breach or the failure to cure,
whichever is later. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 3.03 shall be accomplished by deposit in
the Custodial Account of the amount of the Repurchase Price for distribution to
Purchaser on the Remittance Date immediately following the Principal Prepayment
Period in which such Repurchase Price is received, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution.
At the time of repurchase or substitution, the Purchaser and the
Company shall arrange for the reassignment of the Deleted Mortgage Loan to the
Company and the delivery to the Company of any documents held by the Custodian
relating to the Deleted Mortgage Loan. If the Company repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Company shall cause MERS to designate on
the MERS System to remove the Purchaser as the beneficial holder with respect to
such Mortgage Loan. In the event of a repurchase or substitution, the Company
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan
from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Company shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03. No
substitution will be made in any calendar month after the Determination Date for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan or
Loans in the month following the date of such substitution. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. With respect to any Deleted Mortgage Loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, the Company shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Company in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation, the
Company shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and any Successor Servicer and its present and
former directors, officers, employees and agents and hold such parties harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and expenses 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 representations and warranties
contained in this Agreement. It is understood and agreed that the obligations of
the Company set forth in this Section 3.03 to cure, substitute for or repurchase
a defective Mortgage Loan and to indemnify the Purchaser as provided in this
Section 3.03 constitute the sole remedies of the Purchaser respecting a breach
of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising out
of the breach of any representations and warranties made in Sections 3.01 and
3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Company to the Purchaser, (ii) failures
by the Company to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Company by the Purchaser for compliance with
this Agreement.
Section 3.04 Repurchase of Mortgage Loans with First Payment
Defaults.
If the related Mortgagor is delinquent with respect to the Mortgage
Loan's first Monthly Payment either (i) after origination of such Mortgage Loan,
or (ii) after the Closing Date, the Company, at the Purchaser's option, shall
repurchase such Mortgage Loan from the Purchaser at a price equal to the
Repurchase Price. The Purchaser shall notify the Company and request a
repurchase within seventy-five (75) days after the related Mortgagor's failure
to make such payment and the Company shall repurchase such delinquent Mortgage
Loan within fifteen (15) days of such request.
Section 3.05 Premium Recapture.
With respect to any Mortgage Loan that prepays in full during the
first ninety days following the Closing Date, the Company shall pay the
Purchaser, within three (3) Business Days after such prepayment in full or
repurchase, an amount equal to the excess of (i) the purchase price percentage
for such Mortgage Loan as stated in the Commitment Letter over par, multiplied
by the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date over (ii) any Prepayment Penalties collected on such prepaid Mortgage
Loans.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer.
The Company, as an independent contractor, shall service and
administer the Mortgage Loans and shall have full power and authority, acting
alone or through the utilization of a Subservicer or a Subcontractor, to do any
and all things in connection with such servicing and administration which the
Company may deem necessary or desirable, consistent with the terms of this
Agreement and with Accepted Servicing Practices. The Company shall be
responsible for any and all acts of a Subservicer and a Subcontractor, and the
Company's utilization of a Subservicer or a Subcontractor shall in no way
relieve the liability of the Company under this Agreement.
Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not individually or in the aggregate
materially adverse to the Purchaser, provided, however, the Company shall not
make any future advances, other than Servicing Advances, with respect to a
Mortgage Loan. The Company shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment of principal (except for actual payments of principal) or change the
final maturity date on such Mortgage Loan, unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Company, imminent. In the event that no default exists or is imminent, the
Company shall request written consent from the Purchaser to permit such a
modification and the Purchaser shall provide written consent or notify the
Company of its objection to such modification within three (3) Business Days of
its receipt of the Company's request. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5.03, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances to
the same extent as for all other advances made pursuant to Section 5.03. Without
limiting the generality of the foregoing, the Company shall continue, and is
hereby authorized and empowered, to execute and deliver on behalf of itself and
the Purchaser, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Company, the Purchaser shall furnish the Company with any powers
of attorney and other documents necessary or appropriate to enable the Company
to carry out its servicing and administrative duties under this Agreement.
The Company is authorized and empowered by the Purchaser, in its own
name, when the Company believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS System, or cause the removal from MERS
registration of any Mortgage Loan on the MERS System, to execute and deliver, on
behalf of the Purchaser, any and all instruments of assignment and other
comparable instruments with respect to such assignment or re-recording of a
Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
The Company shall cause to be maintained for each Cooperative Loan a
copy of the financing statements and shall file and such financing statements
and continuation statements as necessary, in accordance with the Uniform
Commercial Code applicable in the jurisdiction in which the related Cooperative
Apartment is located, to perfect and protect the security interest and lien of
the Purchaser.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Company shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on "prohibited transactions" as defined in Section 860(a)(2)
of the Code and the tax on "contributions" to a REMIC set forth in Section 860D
of the Code) unless the Company has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such REMIC status or result in the
imposition of any tax on the REMIC.
In addition to the Company's servicing obligations as set forth
herein, the Company shall not consent to the placement of a lien on the
Mortgaged Property senior to that of the related Mortgage.
Section 4.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Company shall determine prudently to be in the best
interest of Purchaser, and (4) is consistent with any related PMI Policy. In the
event that any payment due under any Mortgage Loan is not postponed pursuant to
Section 4.01 and remains delinquent for a period of [ninety (90)] days or any
other default continues for a period of ninety (90) days beyond the expiration
of any grace or cure period (or such other period as is required by law in the
jurisdiction where the related Mortgaged Property is located), the Company shall
commence foreclosure proceedings in accordance with the Xxxxxx Xxx Guides,
provided that, prior to commencing foreclosure proceedings, the Company shall
notify the Purchaser in writing of the Company's intention to do so, and the
Company shall not commence foreclosure proceedings if the Purchaser objects to
such action within ten (10) Business Days of receiving such notice. In such
connection, the Company shall from its own funds make all necessary and proper
Servicing Advances, provided, however, that the Company shall not be required to
expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall determine
(a) that such preservation, restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan to Purchaser after reimbursement to
itself for such expenses and (b) that such expenses will be recoverable by it
either through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05) or
through Insurance Proceeds (respecting which it shall have similar priority). In
the event the Purchaser objects to such foreclosure action, the Company shall
not be required to make Monthly Advances with respect to such Mortgage Loan,
pursuant to Section 5.03, and the Company's obligation to make such Monthly
Advances shall terminate on the 90th day referred to above. In such connection,
the Company shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Company shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration or
preservation of any Mortgaged Property, unless it shall determine (a) that such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05) or
through Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Company has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs the Company not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, the Company shall proceed diligently to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loan and the Mortgaged Property, to the end
that the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section 4.04 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and
received in connection with a Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
Custodial Accounts, in the form of time deposit or demand accounts, titled
"Xxxxx Fargo Bank, N.A., in trust for Xxxxxx Funding LLC as Purchaser and/or
subsequent purchasers of Mortgage Loans - P & I." The Custodial Account shall be
established with a Qualified Depository. The Company and the Purchaser intend
that the Custodial Account be a special deposit account. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Custodial Account.
The Custodial Account shall at all times be insured to the fullest extent
allowed by applicable law. Funds deposited in the Custodial Account may be drawn
on by the Company in accordance with Section 4.05.
The Company shall deposit in the Custodial Account within two (2)
Business Days of Company's receipt, and retain therein, the following
collections received by the Company and payments made by the Company after the
Cut-off Date, other than payments of principal and interest due on or before the
Cut-off Date, or received by the Company prior to the Cut-off Date but allocable
to a period subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 4.14),
Section 4.11 and Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 4.01, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 3.03 and all amounts required to be
deposited by the Company in connection with a shortfall in principal
amount of any Qualified Substitute Mortgage Loan pursuant to Section 3.03;
(viii) with respect to each Principal Prepayment an amount (to be
paid by the Company out of its funds) which, when added to all amounts
allocable to interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of principal so
prepaid at the Mortgage Loan Remittance Rate;
(ix) any amounts required to be deposited by the Company pursuant to
Section 4.11 in connection with the deductible clause in any blanket
hazard insurance policy;
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.16;
(xi) with respect to Buydown Mortgage Loans and Subsidy Loans, an
amount from the Escrow Account that when added to the amount received from
the Mortgagor for such month, equal the full Monthly Payment due under the
related Mortgage Note;
(xii) with respect to Pledged Asset Mortgage Loans, any amount
required to be deposited pursuant to Section 4.26 of this Agreement; and
(xiii) any Prepayment Penalties received with respect to any
Mortgage Loan.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 6.01, need not be deposited
by the Company into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Company and the Company shall be entitled to retain and withdraw
such interest from the Custodial Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account.
The Company shall from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's funds
made pursuant to Section 5.03, the Company's right to reimburse itself
pursuant to this sub clause (ii) being limited to amounts received on the
related Mortgage Loan which represent late Monthly Payments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds and such other amounts
as may be collected by the Company respecting which any such advance was
made, it being understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of Purchaser, except
that, where the Company is required to repurchase a Mortgage Loan pursuant
to Section 3.03 or 6.02, the Company's right to such reimbursement shall
be subsequent to the payment to the Purchaser of the Repurchase Price
pursuant to such sections and all other amounts required to be paid to the
Purchaser with respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Company's right to reimburse itself
pursuant to this sub clause (iii) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Company from
the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Company's
right thereto shall be prior to the rights of Purchaser, except that where
the Company is required to repurchase a Mortgage Loan pursuant to Section
3.03 or 6.02, in which case the Company's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(iv) to pay itself interest on funds deposited in the Custodial
Account;
(v) to reimburse itself for expenses incurred and reimbursable to it
pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the case of any
such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account shall
be limited to amounts on deposit in the Custodial Account with respect to
the related REO Property;
(vii) to reimburse itself for any Servicing Advances or REO expenses
after liquidation of the Mortgaged Property not otherwise reimbursed
above;
(viii) to remove funds inadvertently placed in the Custodial Account
by the Company; and
(ix) to clear and terminate the Custodial Account upon the
termination of this Agreement;
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Company shall withdraw all funds from the Custodial Account
except for those amounts which, pursuant to Section 5.01, the Company is not
obligated to remit on such Remittance Date. The Company may use such withdrawn
funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled, "Xxxxx Fargo Bank, N.A., in trust for the Purchaser and/or
subsequent purchasers of Residential Mortgage Loans, and various Mortgagors - T
& I." The Company and the Purchaser intend that the Escrow Account be a special
deposit account. The Escrow Accounts shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Upon request of the Purchaser and within ten (10) days thereof, the
Company shall provide the Purchaser with written confirmation of the existence
of such Escrow Account. Funds deposited in the Escrow Account may be drawn on by
the Company in accordance with Section 4.07.
The Company shall deposit in the Escrow Account or Accounts within
two (2) Business Days of Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement;
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property;
(iii) all payments on account of Buydown Funds; and
(iv) all Servicing Advances for Mortgagors whose Escrow Payments are
insufficient to cover escrow disbursements.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Company for any Servicing Advances made by the
Company pursuant to Section 4.08 (except with respect to any expenses
incurred in procuring or transferring Tax Service Contracts) with respect
to a related Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan or
applicable federal or state law or judicial or administrative ruling;
(iv) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to the restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow Account by
the Company;
(viii) to transfer payment on account of Buydown Funds and/or
Subsidy Funds to the Custodial Account, as applicable; and
(ix) to clear and terminate the Escrow Account on the termination of
this Agreement.
Section 4.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of PMI Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Company in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the Company shall determine
whether any such payments are made by the Mortgagor at the time they first
become due. The Company assumes full responsibility for the timely payment of
all such bills and shall effect timely payment of all such charges irrespective
of each Mortgagor's faithful performance in the payment of same or the making of
the Escrow Payments, and the Company shall make advances from its own funds to
effect such payments within such time period as will avoid the loss of the
related Mortgaged Property by foreclosure of a tax or other lien.
The Company shall ensure that each of the Mortgage Loans shall be
covered by a Tax Service Contract which shall be assigned to the Purchaser or
the Purchaser's designee at the Company's expense in the event that the Company
is terminated as servicer of the related Mortgage Loan(s) hereunder. To the
extent that a Mortgage Loan does not have a Tax Service Contract, the Company
shall pay the Purchaser the cost to procure a Tax Service Contract for such
Mortgage Loan on the Closing Date.
Section 4.09 Protection of Accounts.
The Company may transfer the Custodial Account, Subsidy Account or
the Escrow Account to a different Qualified Depository from time to time,
provided that the Company shall give notice to the Purchaser of such transfer.
The Company shall bear any expenses, losses or damages sustained by
the Purchaser because the Escrow Account are not demand deposit accounts.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are insured
by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, in an amount which is at least equal to
the lesser of (i) 100% of the insurable value, on a replacement cost basis, of
the improvements on the related Mortgaged Property and (ii) the greater of (a)
the outstanding principal balance of the Mortgage Loan and (b) an amount such
that the proceeds of such insurance shall be sufficient to prevent the
application to the Mortgagor or the loss payee of any coinsurance clause under
the policy. In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to Xxxxxx
Mae or Xxxxxxx Mac, the Company shall notify the Purchaser and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another qualified insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time, subject only to Section 4.11 hereof.
If the related Mortgaged Property is located in an area identified
by the Federal Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available) a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier
acceptable to Xxxxxx Mae or Xxxxxxx Mac in an amount representing coverage equal
to the lesser of (i) the minimum amount required, under the terms of coverage,
to compensate for any damage or loss on a replacement cost basis (or the unpaid
balance of the mortgage if replacement cost coverage is not available for the
type of building insured) and (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1968, as amended. If at any
time during the term of the Mortgage Loan, the Company determines in accordance
with the applicable law and pursuant to the Xxxxxx Mae or Xxxxxxx Mac guide,
that the Mortgaged Property is located in a special flood hazard area and is not
covered by flood insurance or is covered in an amount less than the amount
required by the Flood Disaster Protection Act of 1968, as amended, the Company
shall notify the related Mortgagor that the Mortgagor must obtain such flood
insurance coverage, and if said Mortgagor fails to obtain the required flood
insurance coverage within forty-five (45) days after such notification, the
Company shall force place the required flood insurance on the Mortgagor's
behalf.
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current Xxxxxx Mae requirements, and secure from the
owner's association its agreement to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may have
a material effect on the value of the Mortgaged Property as security.
In the event that the Purchaser or the Company shall determine that
the Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Company shall communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor's behalf.
All policies required hereunder shall name the Company as loss payee
and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least thirty (30) days prior written
notice of any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Xxx and Xxxxxxx Mac and
are licensed to do business in the jurisdiction in which the Mortgaged Property
is located. The Company shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such policy
provides coverage in an amount equal to the amount required pursuant to Section
4.10 and otherwise complies with all other requirements of Section 4.10, it
shall conclusively be deemed to have satisfied its obligations as set forth in
Section 4.10. The Company shall prepare and make any claims on the blanket
policy as deemed necessary by the Company in accordance with Accepted Servicing
Practices. Any amounts collected by the Company under any such policy relating
to a Mortgage Loan shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 4.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained on
the related Mortgaged Property a policy complying with Section 4.10, and there
shall have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from the Company's funds, without reimbursement
therefor. Upon request of the Purchaser, the Company shall cause to be delivered
to such Purchaser a certificate of insurance and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without thirty (30) days' prior written notice to such Purchaser.
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other Persons acting in any
capacity requiring such Persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its duties
and obligations as set forth in this Agreement. The minimum coverage under any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be acceptable
to Xxxxxx Mae or Xxxxxxx Mac. Upon the request of any Purchaser, the Company
shall cause to be delivered to such Purchaser a certificate of insurance for
such Fidelity Bond and Errors and Omissions Insurance Policy and a statement
from the surety and the insurer that such Fidelity Bond and Errors and Omissions
Insurance Policy shall in no event be terminated or materially modified without
thirty (30) days' prior written notice to the Purchaser.
Section 4.13 Inspections.
If any Mortgage Loan is more than sixty (60) days delinquent, the
Company immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as may
be required by the primary mortgage guaranty insurer. The Company shall keep a
record of each such inspection and, upon request, shall provide the Purchaser
with such information.
Section 4.14 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. For claims greater than
$15,000, at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company
is hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 4.15 Maintenance of PMI Policy; Claims.
Except as indicated on the Data File, with respect to each Mortgage
Loan with an LTV in excess of 80% at the time of origination, the Company shall,
without any cost to the Purchaser maintain or cause the Mortgagor to maintain in
full force and effect a PMI Policy insuring the portion of the unpaid principal
balance of the Mortgage Loan as to payment defaults. If the Mortgage Loan is
insured by a PMI Policy for which the Mortgagor pays all premiums, the coverage
will remain in place until (i) the LTV decreases to 78% or (ii) the PMI Policy
is otherwise terminated pursuant to the Homeowners Protection Act of 1998, 12
U.S.C ss. 4901, et seq. In the event that such PMI Policy shall be terminated
other than as required by law, the Company shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated PMI Policy. If the insurer shall cease to
be a Qualified Insurer, the Company shall determine, in accordance with Accepted
Servicing Practices, whether recoveries under the PMI Policy are jeopardized for
reasons related to the financial condition of such insurer, it being understood
that the Company shall in no event have any responsibility or liability for any
failure to recover under the PMI Policy for such reason. If the Company
determines that recoveries are so jeopardized, it shall notify the Purchaser and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Company shall not take any action which would
result in noncoverage under any applicable PMI Policy of any loss which, but for
the actions of the Company would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Company shall promptly notify the insurer under
the related PMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such PMI Policy and shall take all actions which
may be required by such insurer as a condition to the continuation of coverage
under such PMI Policy. If such PMI Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
PMI Policy as provided above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms of
such PMI Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any PMI Policy respecting a defaulted Mortgage Loan.
Pursuant to Section 4.04, any amounts collected by the Company under any PMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section 4.16 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Purchaser's designee, or in the event the
Purchaser is not authorized or permitted to hold title to real property in the
state where the REO Property is located, or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Company from any
attorney duly licensed to practice law in the state where the REO Property is
located. The Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the
Purchaser.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition and
sale. The Company, either itself or through an agent selected by the Company,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Company shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Company
deems to be in the best interest of the Purchaser.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held, the
Company shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860(a)(2)(B) of the Code or any "net income from foreclosure
property" within the meaning of Section 860(a)(2)(B) of the Code.
The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event prior
to the close of the third calendar year beginning after the year in which title
has been taken to such REO Property, unless (i) a REMIC election has not been
made with respect to the arrangement under which the Mortgage Loans and the REO
Property are held, and (ii) the Company determines that a longer period is
necessary for the orderly liquidation of such REO Property. If a period longer
than three years is permitted under the foregoing sentence, (i) the Company
shall report monthly to the Purchaser as to the progress being made in selling
such REO Property and (ii) if a purchase money mortgage is taken in connection
with such sale, such purchase money mortgage (1) shall name the Company as
mortgagee, and (2) shall not be held pursuant to this Agreement.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1968, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Company
at such price, and upon such terms and conditions, as the Company deems to be in
the best interests of the Purchaser and provided the sales price and related
terms and conditions are results of arm's length negotiations. The proceeds of
sale of the REO Property shall be promptly deposited in the Custodial Account.
As soon as practical thereafter the expenses of such sale shall be paid and the
Company shall reimburse itself for any related unreimbursed Servicing Advances,
unpaid Servicing Fees and unreimbursed advances made pursuant to Section 5.03.
On the Remittance Date immediately following the Principal Prepayment Period in
which such sale proceeds are received the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the Purchaser within
ninety (90) days from and after the closing of the sale of such REO Property.
With respect to each REO Property, the Company shall hold all funds
collected and received in connection with the operation of the REO Property in
the Custodial Account. The Company shall cause to be deposited on a daily basis
upon the receipt thereof in each Custodial Account all revenues received with
respect to the conservation and disposition of the related REO Property.
The Company shall withdraw from the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 4.10 and the fees of any managing agent of the Company, or the Company
itself. The Company shall make monthly distributions on each Remittance Date to
the Purchaser of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 4.17 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.02, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in connection
with the sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That statement shall be
accompanied by such other information available to the Company as the Purchaser
shall reasonably request.
Section 4.18 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of foreclosure,
the Company shall submit to the Purchaser a liquidation report with respect to
such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Company shall file information
reports with respect to the receipt of mortgage interest received in a trade or
business and information returns relating to cancellation of indebtedness income
with respect to any Mortgaged Property as required by the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by the Code.
Section 4.20 Application of Buydown Funds.
With respect to each Buydown Mortgage Loan, the Company shall have
deposited into the Escrow Account, no later than the last day of the month,
Buydown Funds in an amount equal to the aggregate undiscounted amount of
payments that, when added to the amount the Mortgagor on such Mortgage Loan is
obligated to pay on all Due Dates in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payments which are required to
be paid by the Mortgagor under the terms of the related Mortgage Note (without
regard to the related Buydown Agreement as if the Mortgage Loan were not subject
to the terms of the Buydown Agreement). With respect to each Buydown Mortgage
Loan, the Company will distribute to the Purchaser on each Remittance Date an
amount of Buydown Funds equal to the amount that, when added to the amount
required to be paid on such date by the related Mortgagor, pursuant to and in
accordance with the related Buydown Agreement, equals the full Monthly Payment
that would otherwise be required to be paid on such Mortgage Loan by the related
Mortgagor under the terms of the related Mortgage Note (as if the Mortgage Loan
were not a Buydown Mortgage Loan and without regard to the related Buydown
Agreement).
If the Mortgagor on a Buydown Mortgage Loan defaults on such
Mortgage Loan during the Buydown Period and the Mortgaged Property securing such
Buydown Mortgage Loan is sold in the liquidation thereof (either by the Company
or the insurer under any related Primary Insurance Policy) the Company shall, on
the Remittance Date following the date upon which Liquidation Proceeds or REO
Disposition proceeds are received with respect to any such Buydown Mortgage
Loan, distribute to the Purchaser all remaining Buydown Funds for such Mortgage
Loan then remaining in the Escrow Account. Pursuant to the terms of each Buydown
Agreement, any amounts distributed to the Purchaser in accordance with the
preceding sentence will be applied to reduce the outstanding principal balance
of the related Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan
prepays such Mortgage Loan in its entirety during the related Buydown Period,
the Company shall be required to withdraw from the Escrow Account any Buydown
Funds remaining in the Escrow Account with respect to such Buydown Mortgage Loan
in accordance with the related Buydown Agreement. If a principal prepayment by a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Escrow Account related to such
Buydown Mortgage Loan, would result in a principal prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Company shall
distribute to the Purchaser on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
Section 4.21 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Company
shall adjust the Mortgage Interest Rate on the related Adjustment Date and shall
adjust the Monthly Payment accordingly in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Company shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and Monthly Payment adjustments. Upon the discovery by the Company
or the receipt of notice from the Purchaser that the Company has failed to
adjust a Mortgage Interest Rate or Monthly Payment in accordance with the terms
of the related Mortgage Note, the Company shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss or deferral
caused the Purchaser thereby.
Section 4.22 Confidentiality/Protection of Customer Information.
The Company shall keep confidential and shall not divulge to any
party, without the Purchaser's prior written consent, the price paid by the
Purchaser for the Mortgage Loans, except to the extent that it is reasonable and
necessary for the Company to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies. Each party agrees that it
shall comply with all applicable laws and regulations regarding the privacy or
security of Customer Information and shall maintain appropriate administrative,
technical and physical safeguards to protect the security, confidentiality and
integrity of Customer Information, including maintaining security measures
designed to meet the objectives of the Interagency Guidelines Establishing
Standards for Safeguarding Customer Information, 66 Fed. Reg. 8616 (the
"Interagency Guidelines"). For purposes of this Section, the term "Customer
Information" shall have the meaning assigned to it in the Interagency
Guidelines.
Section 4.23 Fair Credit Reporting Act.
The Company, in its capacity as servicer for each Mortgage Loan,
agrees to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis. Additionally, the Company shall transmit full-file credit
reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement
95-19 and that for each Mortgage Loan, the Company shall agree to report one of
the following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
Section 4.24 Establishment of and Deposits to Subsidy Account.
The Company shall segregate and hold all Subsidy Funds collected and
received pursuant to the Subsidy Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Subsidy
Accounts, in the form of time deposit or demand accounts, titled "Xxxxx Fargo
Bank, N.A., in trust for the Purchaser, its successors or assigns, and/or
subsequent purchasers of Residential Mortgage Loans, and various Mortgagors."
The Subsidy Account shall be an eligible deposit account established with an
eligible institution.
The Company shall, from time to time, withdraw funds from the
Subsidy Account for the following purposes:
(i) to deposit in the Custodial Account in the amounts and in the
manner provided for in Section 4.04(xi);
(ii) to transfer funds to another eligible institution in accordance
with Section 4.09 hereof;
(iii) to withdraw funds deposited in error; and
(iv) to clear and terminate the Subsidy Account upon the termination
of this Agreement.
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Company may employ the Escrow Account as the Subsidy Account to
the extent that the Company can separately identify any Subsidy Funds deposited
therein.
Section 4.25 Letter of Credit Compliance.
Notwithstanding any other provision of this Agreement, the Company
shall comply with all the requirements of any Letter of Credit so as to assure
the full benefit of such Letter of Credit to the Purchaser.
Section 4.26 Letter of Credit Draws.
The Company shall take all steps necessary to make draws under any
Letter of Credit in accordance with the provisions thereof and shall draw on
each Letter of Credit all amounts payable thereunder within the time frame
required by the Letter of Credit or such shorter time within which the Company
can effect such draw (not to exceed thirty (30) calendar days) of (i) the date
the related Pledged Asset Mortgage Loan becomes ninety (90) days or more
delinquent and (ii) the receipt of notice of non-renewal from the Pledge Holder
at any time prior to the date that all amounts owed under the related Pledged
Asset Mortgage Loan are less than or equal to 80% of the Appraised Value of the
related Mortgaged Property. The Company shall notify the Purchaser promptly in
writing upon receipt of notice from the Pledge Holder of non-renewal of any
Letter of Credit. Upon receipt of any amounts as a result of a draw on a Letter
of Credit because of the non-renewal of such Letter of Credit or as a result of
the Pledged Asset Mortgage Loan continuing in default for ninety (90) or more
days, the Company shall deposit such amounts in the Custodial Account and such
amount shall be treated as a payment of principal.
Section 4.27 Assignment of the Letter of Credit.
Notwithstanding anything to the contrary in this Agreement
(including, without limitation, the termination or transfer of the servicing
rights and/or obligations of the Company pursuant to Articles X and XI hereof),
the Company, as beneficiary under any Non-Assigned Letters of Credit, shall
transfer and assign, at no cost to the Purchaser, each Non-Assigned Letter of
Credit to the Purchaser in accordance with the provisions thereof within ten
(10) days of such termination or transfer. In addition, the Company shall
forward within one (1) Business Day of receipt any notice received of
non-renewal of any Letter of Credit. Any funds received by the Company from
draws on the Non-Assigned Letters of Credit after the Company is no longer the
servicer hereunder shall be remitted by the Company to the successor servicer
for deposit into the Custodial Account.
Section 4.28 Pledge Holder Defaults.
Upon a default under the Letter of Credit by the Pledge Holder, the
Company shall take possession of the assets securing the Letter of Credit and
shall deposit such assets or the proceeds thereof in the Custodial Account and
apply them as a prepayment of the related Pledged Asset Mortgage Loan. If such
default described in the prior sentence occurs at any time that the Company is
no longer the servicer of the related Pledged Asset Mortgage Loan, the Company
shall, upon knowledge of such default or notice from the successor servicer of
such default with respect to any Non-Assigned Letter of Credit forward such
proceeds to the successor servicer for deposit into the Custodial Account.
Section 4.29 Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company under this
Agreement or any Reconstitution Agreement unless the Company complies with the
provisions of paragraph (a) of this Section 4.29. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section 4.29.
(a) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subservicer. The
Company shall cause any Subservicer used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section 4.29 and with Sections 6.04, 6.06, 9.01(d)(iii), 9.01(d)(v),
9.01 (d)(vi), 9.01(d)(vii) and 9.01(e) of this Agreement to the same extent as
if such Subservicer were the Company, and to provide the information required
with respect to such Subservicer under Section 9.01(d)(iv) of this Agreement.
The Company shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Section 6.04 and any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 6.06 and any certification required to be delivered to
the Person that will be responsible for signing the Sarbanes Certification under
Section 6.06 as and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor. The
Company shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Purchaser and such
Depositor) of the role and function of each Subcontractor utilized by the
Company or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(e) of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation and other certifications required to be delivered by such
Subcontractor under Section 6.06, in each case as and when required to be
delivered.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances.
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment Period
which amounts shall be remitted on the following Remittance Date, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held in the
Custodial Account, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts.
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Company shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Company on the date such late payment is made and shall cover the
period commencing with the day following such second Business Day and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Company of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event of
Default by the Company.
Section 5.02 Statements to Purchaser.
Not later than the Remittance Date, the Company shall furnish to the
Purchaser a monthly remittance advice, with a trial balance report attached
thereto, as to the remittance period ending on the last day of the preceding
month.
Section 5.03 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date or which
were deferred pursuant to Section 4.01. Any amounts held for future distribution
and so used shall be replaced by the Company by deposit in the Custodial Account
on or before any future Remittance Date if funds in the Custodial Account on
such Remittance Date shall be less than payments to the Purchaser required to be
made on such Remittance Date. The Company's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including REO Disposition
Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that such obligation shall cease if the
Company determines, in its sole reasonable opinion, that advances with respect
to such Mortgage Loan are non-recoverable by the Company from Liquidation
Proceeds, REO Disposition Proceeds, Insurance Proceeds, Condemnation Proceeds,
or otherwise with respect to a particular Mortgage Loan. In the event that the
Company determines that any such advances are non-recoverable, the Company shall
provide the Purchaser with a certificate signed by two officers of the Company
evidencing such determination. The Company shall not have an obligation to make
such Monthly Advances as to any Mortgage Loan with respect to shortfalls
relating to the Servicemembers Civil Relief Act or similar state and local laws.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the Person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related PMI Policy, if any.
If the Company reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the Person to whom such property has
been conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit worthiness of the proposed
transferee does not meet such underwriting criteria, the Company diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company shall notify the Purchaser in the
monthly remittance advice as provided in Section 5.02, and may request the
release of any Mortgage Loan Documents.
If the Company satisfies or releases the lien of the Mortgage
without first having obtained payment in full of the indebtedness secured by the
Mortgage (other than as a result of a modification of the Mortgage pursuant to
the terms of this Agreement or liquidation of the Mortgaged Property pursuant to
the terms of this Agreement) or should the Company otherwise prejudice any
rights the Purchaser may have under the mortgage instruments, upon written
demand of the Purchaser, the Company shall repurchase the related Mortgage Loan
at the Repurchase Price by deposit thereof in the Custodial Account within two
(2) Business Days of receipt of such demand by the Purchaser. The Company shall
maintain the Fidelity Bond and Errors and Omissions Insurance Policy as provided
for in Section 4.12 insuring the Company against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures set
forth herein.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account the amount of its Servicing Fee.
The Servicing Fee shall be payable monthly and shall be computed on the basis of
the unpaid principal balance and for the period respecting which any related
interest payment on a Mortgage Loan is received. The obligation of the Purchaser
to pay the Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 4.05) of such Monthly Payments. The
Company recognizes that, to the extent it does not recover all accrued but
unpaid Servicing Fees under this Section 6.03, the Purchaser shall not have any
liability with respect to such shortfalls.
Additional servicing compensation in the form of assumption fees, to
the extent provided in Section 6.01, and late payment charges shall be retained
by the Company to the extent not required to be deposited in the Custodial
Account. The Company shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 6.04 Annual Statements as to Compliance.
On or before March 1 of each calendar year, the Company shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of the
Company, to the effect that (a) a review of the Company's activities during the
immediately preceding calendar year (or applicable portion thereof) and of its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer's supervision, and (b) to
the best of such officers' knowledge, based on such review, the Company has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar year
(or applicable portion thereof) or, if there has been a failure to fulfill any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status thereof.
Section 6.05 [Reserved]
Section 6.06 Report on Assessment of Compliance and Attestation.
On or before March 1 of each calendar year, the Company shall:
(i) deliver to the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser and such Depositor)
regarding the Company's assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser and such Depositor and
signed by an authorized officer of the Company and shall address each of
the "Applicable Servicing Criteria" specified on Exhibit F hereto
delivered to the Purchaser at the time of any Securitization Transaction;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Company and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause each Subservicer and each Subcontractor, determined by
the Company pursuant to Section 4.29(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and such Depositor an assessment of compliance
and accountants' attestation as and when provided in paragraphs (i) and
(ii) of this Section 6.06; and
(iv) if requested by the Purchaser and any Depositor not later than
February 1 of the calendar year in which such certification is to be
delivered, deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002)
on behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification in the form attached hereto as Exhibit G.
The Company acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
Neither the Purchaser nor any Depositor will request delivery of a certification
under clause (iv) above unless a Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to an issuing entity whose asset
pool includes Mortgage Loans.
Each assessment of compliance provided by a Subservicer pursuant to
Section 6.06(i) shall address each of the Servicing Criteria specified
substantially in the form of Exhibit F hereto delivered to the Purchaser at the
time of any Securitization Transaction or, in the case of a Subservicer
subsequently appointed as such, on or prior to the date of such appointment. An
assessment of compliance provided by a Subcontractor pursuant to Section
6.06(iii) need not address any elements of the Servicing Criteria other than
those specified by the Company pursuant to Section 4.29.
Section 6.07 Remedies.
(i) Any failure by the Company, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under Article IX, Section 4.29, Section 6.04 or Section 6.06, or any
breach by the Company of a representation or warranty set forth in Section
9.01(d)(vi)(A), or in a writing furnished pursuant to Section
9.01(d)(vi)(B) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to such closing
date, shall, except as provided in sub-clause (ii) of this Section,
immediately and automatically, without notice or grace period, constitute
an Event of Default with respect to the Company under this Agreement and
any applicable Reconstitution Agreement, and shall entitle the Purchaser
or any Depositor, as applicable, in its sole discretion to terminate the
rights and obligations of the Company as servicer under this Agreement
and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the
Company; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 6.04 or Section
6.06, including (except as provided below) any failure by the Company to
identify any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten (10) calendar days after the date on which such
information, report, certification or accountants' letter was required to
be delivered shall constitute an Event of Default with respect to the
Company under this Agreement and any applicable Reconstitution Agreement,
and shall entitle the Purchaser or any Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Company
under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the
contrary) of any compensation to the Company; provided that to the extent
that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or
obligations following termination of the Company as servicer, such
provision shall be given effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Company pursuant to this
Section 6.07(ii) if a failure of the Company to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB was attributable solely to the role or function of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser), any Master Servicer and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an action for damages, specific performance or injunctive relief.
Section 6.08 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice. The Purchaser shall pay its own expenses associated
with such examination.
Section 6.09 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Company shall not
take any action, cause the REMIC to take any action or fail to take any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of the REMIC as a REMIC or (ii) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on "contributions" to a REMIC set forth in Section 860G(d) of the Code)
unless the Company has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such REMIC status or result in the imposition of any such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies or
originals of any documents contained in the Servicing File for each Mortgage
Loan provided for herein. All other special reports or information not provided
for herein as shall be necessary, reasonable, or appropriate with respect to the
Purchaser or any regulatory agency will be provided at the Purchaser's expense.
All such reports, documents or information shall be provided by and in
accordance with all reasonable instructions and directions which the Purchaser
may give.
The Company shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective purchaser a Consolidated Statement of Operations
of the Company for the most recently completed two (2) fiscal years for which
such a statement is available, as well as a Consolidated Statement of Condition
at the end of the last two (2) fiscal years covered by such Consolidated
Statement of Operations. The Company, upon request, also shall make available
any comparable interim statements to the extent any such statements have been
prepared by or on behalf of the Company (and are available upon request to
members or stockholders of the Company or to the public at large).
The Company also shall make available to Purchaser or prospective
purchasers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective purchaser to
inspect the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and any Successor Servicer
and their respective present and former directors, officers, employees and
agents and hold them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses (including, without
limitation, any legal fees and expenses, judgments or expenses relating to such
liability, claim, loss or damage) and related costs, judgments, and any other
costs, fees and expenses that such Parties may sustain in any way related to the
failure of the Company to perform its duties and service the Mortgage Loans in
strict compliance with the terms.
The indemnification rights set forth in this Section 8.01 shall
survive the termination of this Agreement or the resignation or removal of the
Company for any reason.
The Company immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Purchaser) 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 the Purchaser in respect of such claim. The Company shall follow
any written instructions received from the Purchaser in connection with such
claim. The Purchaser promptly shall reimburse the Company for all amounts
advanced by it pursuant to the preceding sentence except when the claim is in
any way related to the Company's indemnification pursuant to Section 3.03, or
the failure of the Company to service and administer the Mortgage Loans in
strict compliance with the terms of this Agreement. For purposes of this
Section, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" under this Agreement.
Section 8.02 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises, and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the Mortgage
Loans and to perform its duties under this Agreement.
Any Person into which the Company may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company 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 surviving Person shall be an institution which is a Xxxxxx
Xxx/Xxxxxxx Mac-approved seller/servicer in good standing. Furthermore, in the
event the Company transfers or otherwise disposes of all or substantially all of
its assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all of the
Company's obligations and liabilities hereunder.
Section 8.03 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser 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 Company or any such Person against any
breach of warranties or representations made herein, its own negligent actions
or failure to perform its obligations in strict compliance with any standard of
care set forth in this Agreement or any liability which would otherwise be
imposed under this Agreement. The Company and any director, officer, employee or
agent of the Company 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 Company shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties to
service the Mortgage Loans in accordance with this Agreement and which in its
opinion may involve it in any expense or liability, provided, however, that the
Company may, with the prior consent of the Purchaser, undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto. In such event, the Company shall be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
Section 8.04 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and
subsequent purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy of
its servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore, the
Company shall neither assign this Agreement nor the servicing rights hereunder
or delegate its rights or duties hereunder (other than pursuant to Section 4.01)
or any portion hereof or sell or otherwise dispose of all of its property or
assets without the prior written consent of the Purchaser, which consent shall
not be unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without in any way limiting the generality of this Section 8.04, in
the event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its rights or duties hereunder (other
than pursuant to Section 4.01) or any portion hereof or sell or otherwise
dispose of all or substantially all of its property or assets, without the prior
written consent of the Purchaser, then the Purchaser shall have the right to
terminate this Agreement upon notice given as set forth in Section 10.01,
without any payment of any penalty or damages and without any liability
whatsoever to the Purchaser or any third party.
Section 8.05 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Company, to assign, in whole or in part, its interest under this Agreement with
respect to some or all of the Mortgage Loans, and designate any person to
exercise any rights of the Purchaser hereunder. There shall be no limitation on
the number of assignments or transfers allowable by the Purchaser with respect
to the Mortgage Loans and this Agreement. In the event the Purchaser assigns
this Agreement, and the assignee assumes any of the Purchaser's obligations
hereunder, the Company acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the obligations so assumed and the
Purchaser shall be relieved from any liability to the Company with respect
thereto. All references to the Purchaser in this Agreement shall be deemed to
include its assignee or designee with respect to such Mortgage Loans.
ARTICLE IX
AGENCY TRANSFERS, SECURITIZATION
TRANSACTIONS AND WHOLE LOAN TRANSFERS
Section 9.01 Agency Transfers, Securitization Transactions and Whole
Loan Transfers.
The Purchaser and the Company agree that with respect to some or all
of the Mortgage Loans, the Purchaser, at its sole option, may effect Whole Loan
Transfers, Agency Sales or Securitization Transactions, retaining the Company as
the servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage Loans
transferred may cease to be covered by this Agreement; provided, however, that,
in the event that any Mortgage Loan transferred pursuant to this Section 9.01 is
rejected by the transferee, the Company shall continue to service such rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with
each Whole Loan Transfer, Agency Sale or Securitization Transaction in
accordance with this Section 9.01. In connection therewith:
(a) The Company shall make all representations and warranties made
herein with respect to the Mortgage Loans and with respect to the Company itself
as of the closing date of each Whole Loan Transfer, Agency Sale or
Securitization Transaction;
(b) The Company shall negotiate in good faith and execute any (i)
seller/servicer agreements required to effectuate the foregoing provided such
agreements create no greater obligation or cost on the part of the Company than
otherwise set forth in this Agreement or (ii) an assignment, assumption and
recognition agreement, in the form attached hereto as Exhibit H, or a pooling
and servicing agreement in form and substance reasonably acceptable to the
Purchaser and the Company, which shall not create any greater obligation upon
the Company.
(c) The Company shall execute any seller/servicer agreements
required within a reasonable period of time after receipt of such
seller/servicer agreements which time shall be sufficient for the Company and
Company's counsel to review such seller/servicer agreements. Under this
Agreement, the Company shall retain a Servicing Fee for each Mortgage Loan at
the Servicing Fee Rate.
The Company agrees to execute, deliver and satisfy all conditions
set forth in any indemnity agreement required by the Purchaser or any such
participant, including, without limitation, an Indemnification and Contribution
Agreement in substantially the form attached hereto as Exhibit I. The Company
shall indemnify the Purchaser, each Affiliate of the Purchaser participating in
the Reconstitution and each Person who controls the Purchaser or such Affiliate
and their respective present and former directors, officers, employees and
agents, 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 each of them may sustain
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the information provided by or on behalf of the
Company regarding the Company, the Company's or other originator's static pool
information, the Mortgage Loans or the Underwriting Guidelines set forth in any
offering document prepared in connection with any Reconstitution. For purposes
of the previous sentence, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement; and
(d) In connection with any Securitization Transaction, the Company
shall (1) within five (5) Business Days following request by the Purchaser or
any Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator and each Subservicer to provide), in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor, the information and materials specified in paragraphs (i), (ii),
(iii) and (vii) of this subsection (d), and (2) as promptly as practicable
following notice to or discovery by the Company, provide to the Purchaser and
any Depositor (in writing and in form and substance reasonably satisfactory to
the Purchaser and such Depositor) the information specified in paragraph (iv) of
this subsection (d).
(i) If so requested by the Purchaser or any Depositor, the Company
shall provide such information regarding (1) the Company, as originator of
the Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (2) each Third-Party Originator, and (3) as
applicable, each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation
AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originators' credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the
Company, each Third-Party Originator and each Subservicer; and
(D) a description of any affiliation or relationship (of a
type described in Item 1119 of Regulation AB) between the Company,
each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties
are identified to the Company by the Purchaser or any Depositor in
writing in advance of a Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, the Company
shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) originated by (1) the Company, if the Company
is an originator of Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent), and/or (2) each Third-Party
Originator. Such Static Pool Information shall be prepared by the Company
(or Third-Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation
AB. To the extent that there is reasonably available to the Company (or
Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled
to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided by the Company, and need not be
customized for the Purchaser or any Depositor. Such Static Pool
Information for each vintage origination year or prior securitized pool,
as applicable, shall be presented in increments no less frequently than
quarterly over the life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static
Pool Information shall be provided in an electronic format that provides a
permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by
the Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static Pool
Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be
provided pursuant to such paragraph), the Company shall provide corrected
Static Pool Information to the Purchaser or any Depositor, as applicable,
in the same format in which Static Pool Information was previously
provided to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide),
at the expense of the requesting party (to the extent of any additional
incremental expense associated with delivery pursuant to this Agreement),
such agreed-upon procedures letters of certified public accountants
reasonably acceptable to the Purchaser or Depositor, as applicable,
pertaining to Static Pool Information relating to prior securitized pools
for securitizations closed on or after January 1, 2006 or, in the case of
Static Pool Information with respect to the Company's or Third-Party
Originator's originations or purchases, to calendar months commencing
January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with
respect to a Securitization Transaction. Any such statement or letter may
take the form of a standard, generally applicable document accompanied by
a reliance letter authorizing reliance by the addressees designated by the
Purchaser or such Depositor.
(iii) If so requested by the Purchaser or any Depositor, the Company
shall provide such information regarding the Company, as servicer of the
Mortgage Loans, and each Subservicer (each of the Company and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is
requested for the purpose of compliance with Item 1108 of Regulation AB.
Such information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Purchaser or any Depositor, to any
analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether any prior securitizations of mortgage loans
of a type similar to the Mortgage Loans involving the Servicer
have defaulted or experienced an early amortization or other
performance triggering event because of servicing during the
three-year period immediately preceding the related
Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable Servicing Criteria
with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the
three-year period immediately preceding the related
Securitization Transaction;
(4) whether the Servicer has been terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance
with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
(D) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse
financial event or circumstance involving the Servicer could have a
material adverse effect on the performance by the Company of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience;
(iv) If so requested by the Purchaser or any Depositor for the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Company shall (or
shall cause each Subservicer and Third-Party Originator to) (1) notify the
Purchaser and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Company, any Subservicer or any
Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between
the Company, any Subservicer or any Third-Party Originator and any of the
parties specified in Section 9.01(d)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (2) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or
relationships.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or Subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Company or such
Subservicer may be merged or consolidated, or (ii) which may be appointed
as a successor to the Company or any Subservicer, the Company shall
provide to the Purchaser and any Depositor, at least fifteen (15) calendar
days prior to the effective date of such succession or appointment, (x)
written notice to the Purchaser and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply
with its reporting obligation under Item 6.02 of Form 8-K with respect to
any class of asset-backed securities.
(vi) (A) The Company shall be deemed to represent to the Purchaser
and to any Depositor, as of the date on which information is first
provided to the Purchaser or any Depositor under this Section 9.01(d)
that, except as disclosed in writing to the Purchaser or such Depositor
prior to such date: (1) the Company is not aware and has not received
notice that any default, early amortization or other performance
triggering event has occurred as to any other securitization due to any
act or failure to act of the Company; (2) the Company has not been
terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing
performance test or trigger; (3) no material noncompliance with the
applicable Servicing Criteria with respect to other securitizations of
residential mortgage loans involving the Company as servicer has been
disclosed or reported by the Company; (4) no material changes to the
Company's policies or procedures with respect to the servicing function it
will perform under this Agreement and any Reconstitution Agreement for
mortgage loans of a type similar to the Mortgage Loans have occurred
during the three-year period immediately preceding the related
Securitization Transaction; (5) there are no aspects of the Company's
financial condition that could have a material adverse effect on the
performance by the Company of its servicing obligations under this
Agreement or any Reconstitution Agreement; (6) there are no material legal
or governmental proceedings pending (or known to be contemplated) against
the Company, any Subservicer or any Third-Party Originator; and (7) there
are no affiliations, relationships or transactions relating to the
Company, any Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(B) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to
the Purchaser or any Depositor under this Section 9.01(d), the
Company shall, within five (5) Business Days following such request,
confirm in writing the accuracy of the representations and
warranties set forth in sub clause (A) above or, if any such
representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent
facts, in writing, to the requesting party.
(vii) In addition to such information as the Company, as servicer,
is obligated to provide pursuant to other provisions of this Agreement, if
so requested by the Purchaser or any Depositor, the Company shall provide
such information regarding the performance or servicing of the Mortgage
Loans as is reasonably required to facilitate preparation of distribution
reports in accordance with Item 1121 of Regulation AB. Such information
shall be provided concurrently with the monthly reports otherwise required
to be delivered by the servicer under this Agreement, commencing with the
first such report due not less than ten (10) Business Days following such
request.
(e) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, the Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and agents of each
of the foregoing and of the Depositor (each, an "Indemnified Party"), and shall
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:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under
Sections 4.29, 6.04, 6.06, 9.01(d) and (e) by or on behalf of the Company,
or provided under Sections 4.29, 6.04, 6.06, 9.01(d) and (e) by or on
behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Company Information"), or (B) the omission or alleged
omission to state in the Company Information a material fact required to
be stated in the Company Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, by way of clarification, that clause
(B) of this paragraph shall be construed solely by reference to the
Company Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Section
9.01(e), including particularly any failure by the Company, any
Subservicer, any Subcontractor or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or other
material when and as required under Sections 4.29, 6.04, 6.06 and 9.01(d),
including any failure by the Company to identify any Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB; or
(iii) any breach by the Company of a representation or warranty set
forth in Section 9.01(d)(vi)(A) or in a writing furnished pursuant to
Section 9.01(d)(vi)(B) and made as of a date prior to the closing date of
the related Securitization Transaction, to the extent that such breach is
not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to such closing
date.
In the case of any failure of performance described in clause (e)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a 14(d) or Rule 15d 14(d) under the
Exchange Act with respect to such Securitization Transaction, for all
costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other material
not delivered as required by the Company, any Subservicer or any
Subcontractor.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Company agrees that it
shall contribute to the amount paid or payable by such Indemnified Party
as a result of any claims, losses, damages or liabilities incurred by such
Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Company
on the other.
In the case of any failure of performance described in sub-clause (ii) of
this Section 9.01(e), the Company shall promptly reimburse the Purchaser,
any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with
the Commission with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction,
for all costs reasonably incurred by each such party in order to obtain
the information, report, certification, accountants' letter or other
material not delivered as required by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(f) [The Purchaser and a [credit-worthy parent of the Purchaser,
reasonably acceptable to the Company] shall indemnify the Company, each
affiliate of the Company, each Person who controls any of such parties or the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act) and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Company, and shall 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:
(i) any untrue statement of a material fact contained or alleged to
be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum, any
free writing prospectuses, any ABS informational and computational
material, and any amendments or supplements to the foregoing
(collectively, the "Securitization Materials") or
(ii) the omission or alleged omission to state in the Securitization
Materials a material fact required to be stated in the Securitization
Materials or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is other than a statement or
omission arising out of, resulting from, or based upon the Company
Information.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Purchaser agrees that it
shall contribute to the amount paid or payable by such Indemnified Party
as a result of any claims, losses, damages or liabilities incurred by such
Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Purchaser
on the other.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.] [NEED TO DISCUSS]
The Purchaser and the Company acknowledge and agree that the purpose
of Section 9.01(d) is to facilitate compliance by the Purchaser and any
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are registered under the Securities
Act, the Company acknowledges that investors in privately offered securities may
require that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provisions of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Company shall cooperate
fully with the Purchaser to deliver to the Purchaser (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Company, any Subservicer, any Third-Party Originator
and the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably
believed by the Purchaser or any Depositor to be necessary in order to effect
such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Company by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB.
In the event the Purchaser has elected to have the Company hold
record title to the Mortgages, prior to the Reconstitution Date the Company
shall prepare an Assignment of Mortgage in blank or to the trustee from the
Company acceptable to the trustee for each Mortgage Loan that is part of the
Whole Loan Transfers, Agency Sales or Securitization Transactions. The Purchaser
shall pay all preparation and recording costs associated therewith, if such
Assignments of Mortgage have been previously prepared and recorded in the name
of the Purchaser or its designee. The Company shall execute each Assignment of
Mortgage, track such Assignments of Mortgage to ensure they have been recorded
and deliver them as required by the trustee upon the Company's receipt thereof.
Additionally, the Company shall prepare and execute, at the direction of the
Purchaser, any note endorsements in connection with any and all seller/servicer
agreements.
All Mortgage Loans (i) not sold or transferred pursuant to Whole
Loan Transfers, Agency Sales or Securitization Transactions or (ii) that are
subject to a Securitization Transaction for which the related trust is
terminated for any reason, shall remain subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and with
respect thereto this Agreement shall remain in full force and effect.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
Each of the following shall constitute an Event of Default on the
part of the Company:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues
unremedied for a period of five (5) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Company set forth in this Agreement or in the Custodial Agreement
which continues unremedied for a period of thirty (30) days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Purchaser or by the
Custodian (except that such number of days shall be fifteen in the case of
a failure to pay any premium for any insurance policy required to be
maintained under this Agreement and such number of days shall be five in
the case of a failure to deliver any reports required to be delivered to
the Purchaser hereunder); or
(iii) failure by the Company to maintain its license to do business
or service residential mortgage loans in any jurisdiction where the
Mortgaged Property is located if such license is required; or
(iv) 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, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Company and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(v) the Company shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Company or of or relating to all or substantially all of its property; or
(vi) the Company 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, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations or cease its normal business operations for three (3)
Business Days; or
(vii) the Company ceases to meet the qualifications of a Xxxxxx
Xxx/Xxxxxxx Mac servicer; or
(viii) the Company attempts to assign its right to servicing
compensation hereunder or the Company attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of Section 8.04; or
(ix) an Event of Default as defined in Section 6.07.
If the Company obtains knowledge of an Event of Default, the Company
shall promptly notify the Purchaser. In each and every such case, so long as an
Event of Default shall not have been remedied, in addition to whatever rights
the Purchaser may have at law or equity to damages, including injunctive relief
and specific performance, the Purchaser, by notice in writing to the Company,
may terminate without compensation all the rights and obligations of the Company
under this Agreement and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority
and power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any Purchaser,
the Company shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor's possession all Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
Section 10.02 Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the
Company in the performance of its obligations hereunder and its consequences.
Upon any 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.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon either: (i) the later of the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or the disposition of any REO Property with respect to the
last Mortgage Loan and the remittance of all funds due hereunder; or (ii) mutual
consent of the Company and the Purchaser in writing.
Section 11.02 Termination Without Cause.
The Purchaser may terminate, at its sole option, any rights the
Company may have hereunder, without cause as provided in this Section 11.02. Any
such notice of termination shall be in writing and delivered to the Company by
registered mail as provided in Section 12.05.
The Company shall be entitled to receive, as such liquidated
damages, upon the transfer of the servicing rights, an amount equal to: (i)
2.75% of the aggregate outstanding principal amount of the Mortgage Loans as of
the termination date paid by the Purchaser to the Company with respect to all of
the Mortgage Loans for which a servicing fee rate of .25% is paid per annum,
(ii) 3.25% of the aggregate outstanding principal amount of the Mortgage Loans
as of the termination date paid by the Purchaser to the Company with respect to
all of the Mortgage Loans for which a servicing fee rate of .375% is paid per
annum, and (iii) 3.75% of the aggregate outstanding principal amount of the
Mortgage Loans as of the termination date paid by the Purchaser to the Company
with respect to all of the Mortgage Loans for which a servicing fee rate of .44%
or greater is paid per annum.
Section 11.03 Transfer of Servicing.
On the related Transfer Date, if any, the Purchaser, or its
designee, shall assume all servicing responsibilities related to, and the
Company cease all servicing responsibilities related to, the related Mortgage
Loans subject to such Transfer Date. On or prior to the related Transfer Date,
the Company shall, at its sole cost and expense, take such steps as may be
necessary or appropriate to effectuate and evidence the transfer of the
servicing of the related Mortgage Loans to the Purchaser, or its designee,
including but not limited to the following:
(a) Notice to Mortgagors. The Company shall mail to the Mortgagor of
each related Mortgage Loan a letter advising such Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990,
as amended; provided, however, the content and format of the letter shall have
the prior approval of the Purchaser. The Company shall provide the Purchaser
with copies of all such related notices no later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The
Company shall transmit to the applicable taxing authorities and insurance
companies (including primary mortgage insurance policy insurers, if applicable)
and/or agents, notification of the transfer of the servicing to the Purchaser,
or its designee, and instructions to deliver all notices, tax bills and
insurance statements, as the case may be, to the Purchaser from and after the
related Transfer Date. The Company shall provide the Purchaser with copies of
all such notices no later than the related Transfer Date.
(c) Delivery of Servicing Records. The Company shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in the
Company's possession relating to each related Mortgage Loan.
(d) Escrow Payments. The Company shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Company shall provide the Purchaser with an
accounting statement, in electronic format acceptable to the Purchaser in its
sole discretion, of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Company shall
wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Company.
(e) Payoffs and Assumptions. The Company shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Company on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date all payments received by the Company on each related
Mortgage Loan shall be properly applied by the Company to the account of the
particular Mortgagor.
(g) Mortgage Payments Received after Transfer Date. The amount of
any related Monthly Payments received by the Company after the related Transfer
Date shall be forwarded to the Purchaser by overnight mail on the date of
receipt or by wire transfer on the next succeeding Business Day. The Company
shall notify the Purchaser of the particulars of the payment, which notification
requirement shall be satisfied if the Company forwards with its payment
sufficient information to permit appropriate processing of the payment by the
Purchaser. The Company shall assume full responsibility for the necessary and
appropriate legal application of such Monthly Payments received by the Company
after the related Transfer Date with respect to related Mortgage Loans then in
foreclosure or bankruptcy; provided, for purposes of this Agreement, necessary
and appropriate legal application of such Monthly Payments shall include, but
not be limited to, endorsement of a Monthly Payment to the Purchaser with the
particulars of the payment such as the account number, dollar amount, date
received and any special Mortgagor application instructions and the Company
shall comply with the foregoing requirements with respect to all Monthly
Payments received by the Company after the related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(i) All parties shall cooperate in correcting misapplication errors;
(ii) The party receiving notice of a misapplied payment occurring
prior to the related Transfer Date and discovered after such Transfer Date
shall immediately notify the other party;
(iii) If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a Custodial Account or Escrow Account, the
Company shall be liable for the amount of such shortage. The Company shall
reimburse the Purchaser for the amount of such shortage within thirty (30)
days after receipt of written demand therefor from the Purchaser;
(iv) If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the result of an
inaccurate outstanding principal balance, a check shall be issued to the
party shorted by the improper payment application within five (5) Business
Days after notice thereof by the other party; and
(v) Any check issued under the provisions of this Section 11.03(h)
shall be accompanied by a statement indicating the corresponding Company
and/or the Purchaser Mortgage Loan identification number and an
explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer Date, the books,
records and accounts of the Company with respect to the related Mortgage Loans
shall be in accordance with all applicable Purchaser requirements.
(j) Reconciliation. The Company shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Company and the Purchaser as appropriate.
(k) IRS Forms. The Company shall file or shall cause to be filed all
IRS forms 1099, 1099A, 1098 or 1041 and K-1 which are required to be filed on or
before the related Transfer Date in relation to the servicing and ownership of
the related Mortgage Loans. The Company shall provide copies of such forms to
the Purchaser upon request and shall reimburse the Purchaser for any costs or
penalties incurred by the Purchaser due to the Company's failure to comply with
this paragraph.
(l) Mortgage Loans in Foreclosure. The servicing with respect to
Mortgage Loans in foreclosure on or before the related Transfer Date shall not
be transferred from the Company to the Purchaser or its designee, as the case
may be, and such Mortgage Loans shall continue to be serviced by the Company
pursuant to the terms of this Agreement. However, if the Purchaser so elects,
the Purchaser may waive the provisions of this paragraph and accept transfer of
servicing of such Mortgage Loans and all amounts received by the Company
thereunder.
(m) Servicing Advances. Notwithstanding the fact that the related
Transfer Date has occurred, the Company shall not be reimbursed for any
Servicing Advances in relation to any Mortgage Loan until the Company or the
Successor Servicer receives a Monthly Payment or Liquidation Proceeds in
relation to such Mortgage Loan. At such time, the Company shall be entitled to
be reimbursed for all unreimbursed Servicing Advances with respect to such
Mortgage Loan on a first priority basis from the Monthly Payment or Liquidation
Proceeds received with respect to such Mortgage Loan. This clause shall survive
each Transfer Date.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.
Prior to termination of the Company's responsibilities and duties
under this Agreement pursuant to Sections 8.04, 10.01, 11.01 (ii) or pursuant to
Section 11.02 the Purchaser shall, (i) succeed to and assume all of the
Company's responsibilities, rights, duties and obligations under this Agreement,
or (ii) appoint a successor having the characteristics set forth in Section 8.02
and which shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Company under this Agreement prior to the
termination of Company's responsibilities, duties and liabilities under this
Agreement. Any successor to the Company shall be a Xxxxxx Xxx- or Xxxxxxx
Mac-approved servicer in good standing. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Company's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Company shall discharge such duties and responsibilities during
the period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Company pursuant to the
aforementioned sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event relieve the
Company of the representations and warranties made pursuant to Sections 3.01 and
3.02 and the remedies available to the Purchaser under Sections 3.03 and 8.01,
it being understood and agreed that the provisions of such Sections 3.01, 3.02,
3.03 and 8.01 shall be applicable to the Company notwithstanding any such sale,
assignment, resignation or termination of the Company, or the termination of
this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Company and to the Purchaser an instrument
accepting such appointment, wherein the successor shall make the representations
and warranties set forth in Section 3.01, except for subsection (h) with respect
to the sale of the Mortgage Loans and subsections (i) and (k) thereof, whereupon
such successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Section
8.04, 10.01, 11.01 or 11.02 shall not affect any claims that any Purchaser may
have against the Company arising out of the Company's actions or failure to act
prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the
funds in the Custodial Account, Subsidy Account and Escrow Account and all
Mortgage Files and related documents and statements held by it hereunder and the
Company shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment.
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser.
Section 12.03 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Each of the Company and the Purchaser hereby knowingly, voluntarily
and intentionally waives any and all rights it may have to a trial by jury in
respect or any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Company or the Purchaser. This
provision is a material inducement for the Purchaser to enter into this
Agreement.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until
terminated as herein provided. This Agreement shall continue notwithstanding
transfers of the Mortgage Loans by the Purchaser.
Section 12.05 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Company with respect to servicing issues:
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2302-033
Fax: 515/000-0000
(ii) if to the Company with respect to all other issues:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Structured Finance Manager, MAC X3906-012
Fax: 301/000-0000
In each instance, with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel MAC X2401-06T
or such other address as may hereafter be furnished to the Purchaser
in writing by the Company;
(iii) if to Purchaser:
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Vice President
Fax: 000-000-0000
With a copy to:
Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
E-mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
and
Attention: Xxxxxxx Xxxxxx
Fax: 000-000-0000
E-mail: xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
or such other address as may hereafter be furnished to the
Company in writing by the Purchaser;
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, 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.
Section 12.07 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Company shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 12.08 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Company and the Purchaser
and their respective successors and assigns. The parties agree that this
Agreement and signature pages thereof may be transmitted between them by
facsimile and that faxed signatures may constitute original signatures and that
a faxed signature page containing the signature (faxed or original) is binding
on the parties.
Section 12.09 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Company's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Company to assign, in whole or in part, its interest under this Agreement with
respect to some or all of the Mortgage Loans, and designate any Person to
exercise any rights of the Purchaser hereunder, by executing an Assignment,
Assumption and Recognition Agreement substantially in the form attached as
Exhibit H, and the assignee or designee shall accede to the rights and
obligations hereunder of the Purchaser with respect to such Mortgage Loans. In
the event the Purchaser assigns this Agreement, and the assignee assumes any of
the Purchaser's obligations hereunder, the Company acknowledges and agrees to
look solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability to
the Company with respect thereto. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section 12.11 Solicitation of Mortgagor.
Neither party shall, after the Closing Date, take any action or
permit or cause any action to be taken by any of its agents, affiliates or
independent contractors acting on its behalf, to solicit the refinancing of any
Mortgage Loan. It is understood and agreed that neither (i) promotions
undertaken by either party or any affiliate of either party which are directed
to the general public at large, including, without limitation, mass mailings
based upon commercially acquired mailing lists, newspaper, radio, television
advertisements nor (ii) serving the refinancing needs of a Mortgagor who,
without solicitation, contacts either party in connection with the refinance of
such Mortgage or Mortgage Loan, shall constitute solicitation under this
Section.
Section 12.12 Further Agreements.
The Purchaser and the Company each agree to execute and deliver to
the other such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 12.13 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
[Intentionally Blank - Next Page Signature Page]
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
XXXXXX FUNDING LLC XXXXX FARGO BANK, N.A.
By:_________________________________ By:________________________________
Name:_______________________________ Name:______________________________
Title:______________________________ Title:_____________________________
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of February, 2007 before me, a Notary Public in and
for said State, personally appeared ______, known to me to be _________ of Xxxxx
Fargo Bank, N.A., the national banking association that executed the within
instrument and also known to me to be the person who executed it on behalf of
said bank, and acknowledged to me that such bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
_____________________________
Notary Public
[SEAL]
My commission expires:
_______________________________________
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of February, 2007 before me, a Notary Public in and
for said State, personally appeared _______________________________, known to me
to be the _____________________ of Xxxxxx Funding LLC, the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
_____________________________
Notary Public
[SEAL]
My commission expires:
_______________________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
CUSTODIAL AGREEMENT
EXHIBIT C
CONTENTS OF EACH MORTGAGE FILE AND SERVICING FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be retained by the
Company in the Mortgage File or Servicing File or delivered to the Custodian
pursuant to Sections 2.01 and 2.03 of the Seller's Warranties and Servicing
Agreement to which this Exhibit is attached (the "Agreement"):
With respect to each Mortgage File:
1. The original Mortgage Note bearing all intervening endorsements, endorsed
"Pay to the order of __________________ without recourse" and signed in
the name of the Company by an authorized officer (in the event that the
Mortgage Loan was acquired by the Company in a merger, the signature must
be in the following form: "[Company], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
signature must be in the following form: "[Company], formerly known as
[previous name]").
2. The originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon.
3. Except in the case of MERS Mortgage Loans, the original Assignment of
Mortgage for each Mortgage Loan, in form and substance acceptable for
recording (except for the insertion of the name of the assignee and
recording information). The Assignment of Mortgage must be duly recorded
only if recordation is either necessary under applicable law or commonly
required by private institutional mortgage investors in the area where the
Mortgaged Property is located or on direction of the Purchaser. If the
Assignment of Mortgage is to be recorded, the Mortgage shall be assigned
to the Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan
was acquired by the Company in a merger, the Assignment of Mortgage must
be made by "[Company], successor by merger to [name of predecessor]." If
the Mortgage Loan was acquired or originated by the Company while doing
business under another name, the Assignment of Mortgage must be by
"[Company], formerly know as [previous name]."
4. The original of any guarantee executed in connection with the Mortgage
Note.
5. Original or certified copy of power of attorney, if applicable.
6. The original Mortgage, with evidence of recording thereon or a certified
true and correct copy of the Mortgage sent for recordation. If in
connection with any Mortgage Loan, the Company cannot deliver or cause to
be delivered the original Mortgage with evidence of recording thereon on
or prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the Company shall deliver
or cause to be delivered to the Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Company stating that such Mortgage
has been dispatched to the appropriate public recording office for
recordation and that the original recorded Mortgage or a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Company; or (ii) in the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete copy of the
original recorded Mortgage.
For each MERS Mortgage Loan, the original Mortgage, noting the presence of
the MIN for that Mortgage Loan and either language indicating that the
Mortgage Loan was originated in the name of MERS, or if the Mortgage Loan
was not originated in the name of MERS, the original Mortgage and the
assignment to MERS, with evidence of recording thereon. Further, with
respect to MERS Mortgage Loans, (a) the Mortgage names MERS as the
Mortgagee and (b) the requirements set forth in the Electronic Tracking
Agreement have been satisfied, with a conformed recorded copy to follow as
soon as the same is received by the Company.
7. Originals or certified true copies of documents sent for recordation of
all intervening assignments of the Mortgage with evidence of recording
thereon, or if any such intervening assignment has not been returned from
the applicable recording office or has been lost or if such public
recording office retains the original recorded assignments of mortgage,
the Company shall deliver or cause to be delivered to the Custodian, a
photocopy of such intervening assignment, together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
the Company stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for recordation and
that such original recorded intervening assignment of mortgage or a copy
of such intervening assignment of mortgage certified by the appropriate
public recording office or by the title insurance company that issued the
title policy to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in the case of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
8. The electronic form of PMI Policy as identified by certificate number.
9. The original mortgagee policy of title insurance or other evidence of
title such as a copy of the title commitment or copy of the preliminary
title commitment.
10. Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
11. For each Cooperative Loan, the original or a seller certified true copy of
the following:
The original Pledge Agreement entered into by the Mortgagor with respect
to such Cooperative Loan;
UCC-3 assignment in blank (or equivalent instrument), sufficient under the
laws of the jurisdiction where the related Cooperative Apartment is
located to reflect of record the sale and assignment of the Cooperative
Loan to the Purchaser;
Original assignment of Pledge Agreement in blank showing a complete chain
of assignment from the originator of the related Cooperative Loan to the
Company;
Original Form UCC-1 and any continuation statements with evidence of
filing thereon with respect to such Cooperative Loan;
Cooperative Shares with a Stock Certificate in blank attached;
Original Proprietary Lease;
Original Assignment of Proprietary Lease, in blank, and all intervening
assignments thereof;
Original recognition agreement of the interests of the mortgagee with
respect to the Cooperative Loan by the Cooperative, the stock of which was
pledged by the related Mortgagor to the originator of such Cooperative
Loan; and
Originals of any assumption, consolidation or modification agreements
relating to any of the items specified above.
12. For each Pledged Asset Mortgage Loan, an Assigned Letter of Credit.
With respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company's agent(s):
13. The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 4.10 of the Agreement.
14. Residential loan application.
15. Mortgage Loan closing statement.
16. Verification of employment and income, unless originated under the
Company's Limited Documentation program, Xxxxxx Xxx Timesaver Plus.
17. Verification of acceptable evidence of source and amount of down payment,
including any related asset verification, if applicable.
18. Credit report on the Mortgagor.
19. Residential appraisal report, including the related completion
certificate, if applicable.
20. Photograph of the Mortgaged Property.
21. Survey of the Mortgage property, if required by the title company or
applicable law.
22. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
23. All required disclosure statements.
24. If available, termite report, structural engineer's report, water
potability and septic certification.
25. Sales contract, if applicable.
26. Evidence of payment of taxes and insurance premiums, insurance claim
files, correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records which
are customarily contained in a mortgage loan file and which are required
to document the Mortgage Loan or to service the Mortgage Loan.
27. Amortization schedule, if available.
28. Payment history for any Mortgage Loan that has been closed for more than
90 days.
In the event an Officer's Certificate of the Company is delivered to
the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 240 days of the Closing Date, an Officer's Certificate which shall (i)
identify the recorded document, (ii) state that the recorded document has not
been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
[Notwithstanding Paragraphs 1 and 3 above, the Purchaser
acknowledges that the Company may deliver (i) a Mortgage Note for which the
chain of endorsements is not identical to that of the intervening Assignments
with respect to such Mortgage Note, which shall not affect the enforceability of
such Mortgage Note, and/or (ii) intervening Assignments which are not identical
to the chain of endorsements with respect to such Mortgage Note, which shall not
affect the validity of such intervening Assignments; provided, however, that
such acknowledgment shall in no way operate to negate the Purchaser's remedies
for the Company's breach of the representations and warranties under this
Agreement.] [XXXXX - LET'S DISCUSS]
EXHIBIT D
DATA FILE ELEMENTS
(1) the street address of the Mortgaged Property including the city, state,
county and zip code;
(2) a code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a cooperative, a townhouse,
manufactured housing or a unit in a condominium project;
(3) the Mortgage Interest Rate as of the Cut-off Date;
(4) the current Monthly Payment;
(5) original loan term, number of months;
(6) the stated maturity date;
(7) the Stated Principal Balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of principal due
on or before the Cut-off Date;
(8) the Loan-to-Value Ratio;
(9) a code indicating whether the Mortgage Loan is an Interest Only Mortgage
Loan and the term of such Interest Only Mortgage Loan;
(10) a code indicating whether the Mortgage Loan is a temporary buydown (Y or
N);
(11) the Servicing Fee Rate;
(12) a code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
(13) a code indicating whether the Mortgage Loan is a Time$aver(R) Mortgage
Loan (Y or N);
(14) the Mortgagor's first and last name;
(15) a code indicating whether the Mortgaged Property is owner-occupied, a
second home or an investment property;
(16) the remaining months to maturity from the Cut-off Date, based on the
original amortization schedule;
(17) the date on which the first Monthly Payment was due on the Mortgage Loan;
(18) the last Due Date on which a Monthly Payment was actually applied to the
actual principal balance;
(19) the original principal amount of the Mortgage Loan;
(20) a code indicating the purpose of the loan (i.e., purchase, financing,
rate/term refinancing, cash-out refinancing);
(21) the Mortgage Interest Rate at origination;
(22) a code indicating the documentation style (i.e., full (providing two years
employment verification - 2 years W-2's and current pay stub or 2 years
1040's for self employed borrowers), alternative or reduced);
(23) a code indicating if the Mortgage Loan is subject to a PMI Policy;
(24) the Appraised Value of the Mortgage Property;
(25) the sale price of the Mortgaged Property, if applicable;
(26) the Mortgagor's FICO Score;
(27) term of prepayment penalty in years;
(28) a code indicating the product type;
(29) a code indicating the credit grade of the Mortgage Loan;
(30) the unpaid balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of all payments of principal;
(31) the Mortgage Note date of the Mortgage Loan;
(32) the mortgage insurance certificate number and percentage of coverage, if
applicable;
(33) the Mortgagor's date of birth;
(34) if the Mortgage Loan is a MERS Mortgage Loan, the MIN Number for each MERS
Mortgage Loan;
(35) employer name;
(36) subsidy program code;
(37) servicer name;
(38) the combined Loan-to-Value Ratio;
(39) the total Loan-to-Value Ratio;
(40) whether the Mortgage Loan is convertible (Y or N);
(41) a code indicating whether the Mortgage Loan is a relocation loan (Y or N);
(42) a code indicating whether the Mortgage Loan is a leasehold loan (Y or N);
(43) a code indicating whether the Mortgage Loan is an Alt A loan (Y or N);
(44) a code indicating whether the Mortgage Loan is a no ratio loan (Y or N);
(45) a code indicating whether the Mortgage Loan is a Pledged Asset Mortgage
Loan (Y or N);
(46) effective LTV percentage for pledged asset mortgage loan;
(47) citizenship type code;
(48) a code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan balance;
(49) the name of the client for which the Mortgage Loan was originated;
(50) the program code;
(51) the loan sub doc code;
(52) a code indicating whether the Mortgage Loan is secured by a first or
second lien;
(53) a code indicating amortization type (1 or 2);
(54) interest-only note payment;
(55) first full amortization payment date;
(56) interest-only term, number of months;
(57) remaining interest-only term for Interest-Only Mortgage Loans, number of
months;
(58) a code indicating whether the Mortgage Loan is a 2nd lien (Y or N);
(59) a code indicating borrower verification of assets or lender verification
of assets (L or B);
(60) combined current loan balance;
The Company shall provide the following
For the Home Mortgage Disclosure Act (HMDA):
(61) the Mortgagor's and co-Mortgagor's (if applicable) ethnicity;
(62) the Mortgagor's and co-Mortgagor's (if applicable) race;
(63) lien status;
(64) for cash-out refinance loans, the cash purpose;
(65) the Mortgagor's and co-Mortgagor's (if applicable) gender;
(66) the Mortgagor's and co-Mortgagor's (if applicable) social security numbers;
(67) the number of units for the property;
(68) the year in which the property was built;
(69) the qualifying monthly income of the Mortgagor;
(70) the number of bedrooms contained in the property;
(71) a code indicating first time buyer (Y or N);
(72) the total rental income, if any;
The Company shall provide the following for the
Adjustable Rate Mortgage Loans (if applicable):
(73) the maximum Mortgage Interest Rate under the terms of the Mortgage Note;
(74) the Periodic Interest Rate Cap;
(75) the Index;
(76) the next Adjustment Date;
(77) the Gross Margin; and
(78) the lifetime interest rate cap.
EXHIBIT E
FORM OF OPINION OF COUNSEL
[________]
[________]
[________]
Re: Xxxxx Fargo Bank, N.A.__Mortgage Loan Series [________]
Dear Sir/Madam:
I am [______] of Xxxxx Fargo Home Mortgage, a division of Xxxxx Fargo
Bank, N.A. and have acted as counsel to Xxxxx Fargo Home Mortgage, a division of
Xxxxx Fargo Bank, N.A. (the "Company"), with respect to certain matters in
connection with the sale by the Company of the mortgage loans designated as
Mortgage Loan Series [______] (the "Mortgage Loans") pursuant to that certain
Seller's Warranties and Servicing Agreement by and between the Company and
[______] (the "Purchaser"), dated as of [______], 20__, (the "Agreement"), which
sale is in the form of whole Mortgage Loans. Capitalized terms not otherwise
defined herein have the meanings set forth in the Agreement.
I have examined the following documents:
1. the Seller's Warranties and Servicing Agreement;
2. the Custodial Agreement;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as I have deemed
necessary and relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon
the representations and warranties of the Company contained in the Agreement. I
have assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
Based upon the foregoing, it is my opinion that;
1. The Company is a national banking association duly organized,
validly existing and in good standing under the laws of the
United States.
2. The Company has the power to engage in the transactions
contemplated by the Agreement, the Custodial Agreement and all
requisite power, authority and legal right to execute and
deliver the Agreement, the Custodial Agreement and the
Mortgage Loans, and to perform and observe the terms and
conditions of such instruments.
3. Each person who, as an officer or attorney-in-fact of the
Company, signed (a) the Agreements, each dated as of @, 20__,
by and between the Company and the Purchaser, and (b) any
other document delivered prior hereto or on the date hereof in
connection with the sale and servicing of the Mortgage Loans
in accordance with the Agreements was, at the respective times
of such signing and delivery, and is, as of the date hereof,
duly elected or appointed, qualified and acting as such
officer or attorney-in-fact, and the signatures of such
persons appearing on such documents are their genuine
signatures.
4. Each of the Agreement, the Custodial Agreement, and the
Mortgage Loans, has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement enforceable in accordance with its terms, subject to
the effect of insolvency, liquidation, conservatorship and
other similar laws administered by the Federal Deposit
Insurance Corporation affecting the enforcement of contract
obligations of insured banks and subject to the application of
the rules of equity, including those respecting the
availability of specific performance, none of which will
materially interfere with the realization of the benefits
provided thereunder or with the Purchaser's ownership of the
Mortgage Loans.
5. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original or
facsimile signature in order to complete the transactions
contemplated by the Agreement and the Custodial Agreement and
in order to execute the endorsements to the Mortgage Notes and
the assignments of the Mortgages, and the original or
facsimile signature of the officer at the Company executing
the Agreement, the Custodial Agreement, the endorsements to
the Mortgage Notes and the assignments of the Mortgages
represents the legal and valid signature of said officer of
the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Agreement, the Custodial
Agreement or the sale and delivery of the Mortgage Loans or
the consummation of the transactions contemplated by the
Agreement and the Custodial Agreement; or (ii) any required
consent, approval, authorization or order has been obtained by
the Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Agreement and the
Custodial Agreement, will conflict with or results in or will
result in a breach of or constitutes or will constitute a
default under the charter or by-laws of the Company, the terms
of any indenture or other agreement or instrument to which the
Company is a party or by which it is bound or to which it is
subject, or violates any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject
or by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of my knowledge, threatened against the
Company which, in my opinion, either in any one instance or in
the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or
assets of the Company or in any material impairment of the
right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on
the part of the Company or which would draw into question the
validity of the Agreement, and the Custodial Agreement, or of
any action taken or to be taken in connection with the
transactions contemplated thereby, or which would be likely to
impair materially the ability of the Company to perform under
the terms of the Agreement and the Custodial Agreement.
9. For purposes of the foregoing, I have not regarded any legal
or governmental actions, investigations or proceedings to be
"threatened" unless the potential litigant or governmental
authority has manifested to the legal department of the
Company or an employee of the Company responsible for the
receipt of process a present intention to initiate such
proceedings; nor have I regarded any legal or governmental
actions, investigations or proceedings as including those that
are conducted by state or federal authorities in connection
with their routine regulatory activities. The sale of each
Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient fully to transfer all right,
title and interest of the Company thereto as noteholder and
mortgagee, apart from the rights to service the Mortgage Loans
pursuant to the Agreement.
10. The form of endorsement that is to be used with respect to the
Mortgage Loans is legally valid and sufficient to duly endorse
the Mortgage Notes to the Purchaser. Upon the completion of
the endorsement of the Mortgage Notes and the completion of
the assignments of the Mortgages, and the recording thereof,
the endorsement of the Mortgage Notes, the delivery to the
Custodian of the completed assignments of the Mortgages, and
the delivery of the original endorsed Mortgage Notes to the
Custodian would be sufficient to permit the entity to which
such Mortgage Note is initially endorsed at the Purchaser's
direction, and to whom such assignment of Mortgages is
initially assigned at the Purchaser's direction, to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and would be sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon except that the purchaser or purchasers to
which you initially and directly resell the Mortgage Loans may rely on this
opinion as if it were addressed to them as of its date.
Sincerely,
[________]
EXHIBIT F
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company][Name
of Subservicer] shall address, as a minimum, the criteria identified below as
"Applicable Servicing Criteria"
Inapplicable
Applicable Servicing
Reg AB Reference Servicing Criteria Servicing Criteria Criteria
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up X
servicer for the mortgage loans are maintained. [XXXXX - WHY
INAPPLICABLE?]
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the X
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of days
specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve X
accounts or accounts established as a form of overcollateralization,
are separately maintained (e.g., with respect to commingling of cash)
as set forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes
of this criterion, "federally insured depository institution" with
respect to a foreign financial institution means a foreign financial
institution that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number of days specified
in the transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or
such other number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, X
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's records as
to the total unpaid principal balance and number of mortgage loans
serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days X
to the Servicer's investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by X
the transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, X
reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance X
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
Servicer's records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage X
loans (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded
in accordance with the timeframes or other requirements established by
the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the X
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans X
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in accordance
with applicable mortgage loan documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance X
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number
of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made X
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 X
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 X
and recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item X
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements. [XXXXX - WHY INAPPLICABLE?]
EXHIBIT G
SARBANES CERTIFICATION
Re: The [_] agreement dated as of [_], 200[_] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [Name of
Servicer] (the "Servicer"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer provided
in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with
the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Servicer during 200[_] that were delivered by
the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the
"Servicer Servicing Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Servicer Servicing
Information;
(3) Based on my knowledge, all of the Servicer Servicing Information required
to be provided by the Servicer under the Agreement has been provided to
the [Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the Compliance Statement, the Servicing Assessment or the Attestation
Report, the Servicer has fulfilled its obligations under the Agreement in
all material respects; and
(5) The Compliance Statement required to be delivered by the Servicer pursuant
to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Servicer and by any Subservicer or
Subcontractor pursuant to the Agreement have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Dated:
By:________________________________________
Name:
Title:
EXHIBIT H
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
[____________ __, 20__] ("Agreement"), among Xxxxxx Funding LLC ("Assignor"),
[____________________] ("Assignee") and Xxxxx Fargo Bank, N.A., (the "Company"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) except as described below, that certain Seller's
Warranties and Servicing Agreement (the "Seller's Warranties and Servicing
Agreement"), dated as of [_________], 200[_], between the Assignor, as purchaser
(the "Purchaser"), and the Company, as seller, solely insofar as the Seller's
Warranties and Servicing Agreement relates to the Mortgage Loans and (c) that
certain Custodial Agreement (the "Custodial Agreement"), dated as of
[__________], 200[_], by and among the Company, the Purchaser and
[_____________] (the "Custodian").
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Seller's Warranties and Servicing Agreement which are not the Mortgage
Loans set forth on the Mortgage Loan Schedule and are not the subject of this
Agreement or (ii) the rights of the Purchaser under Section 3.04 of the Seller's
Warranties and Servicing Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Seller's Warranties
and Servicing Agreement (solely to the extent set forth herein) and this
Agreement to [__________________] (the "Trust") created pursuant to a Pooling
and Servicing Agreement, dated as of [______], 200_ (the "Pooling Agreement"),
among the Assignee, the Assignor, [___________________], as trustee (including
its successors in interest and any successor trustees under the Pooling
Agreement, the "Trustee"), [____________________], as servicer (including its
successors in interest and any successor servicer under the Pooling Agreement,
the "Servicer"). The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate to
the Mortgage Loans, under the Seller's Warranties and Servicing Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 6 of the Seller's Warranties and Servicing
Agreement, and shall be entitled to enforce all of the obligations of the
Company thereunder insofar as they relate to the Mortgage Loans, and (iv) all
references to the Purchaser, the Custodian or the Bailee under the Seller's
Warranties and Servicing Agreement insofar as they relate to the Mortgage Loans,
shall be deemed to refer to the Trust (including the Trustee and the Servicer
acting on the Trust's behalf). Neither the Company nor the Assignor shall amend
or agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Seller's Warranties and Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company's performance under the Seller's Warranties and Servicing
Agreement with respect to the Mortgage Loans without the prior written consent
of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Seller's Warranties and
Servicing Agreement. The execution by the Company of this Agreement is in
the ordinary course of the Company's business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of
the Company's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Company is now a party or by which it
is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been duly authorized by all necessary corporate action on part of the
Company. This Agreement has been duly executed and delivered by the
Company, and, upon the due authorization, execution and delivery by the
Assignor and the Assignee, will constitute the valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement or the Seller's Warranties and Servicing Agreement, or which,
either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Seller's Warranties and Servicing
Agreement, and the Company is solvent.
4. Pursuant to Section 9 of the Seller's Warranties and Servicing
Agreement, the Company hereby represents and warrants, for the benefit of the
Assignor, the Assignee and the Trust, that the representations and warranties
set forth in Section 3.02 of the Seller's Warranties and Servicing Agreement are
true and correct as of the date hereof as if such representations and warranties
were made on the date hereof unless otherwise specifically stated in such
representations and warranties.
Remedies for Breach of Representations and Warranties
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Section 3.03 of the Seller's Warranties and
Servicing Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each of this Agreement and the Seller's Warranties and Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Seller's Warranties and Servicing Agreement (to the extent assigned
hereunder) by Assignor to Assignee and by Assignee to the Trust and nothing
contained herein shall supersede or amend the terms of the Seller's Warranties
and Servicing Agreement.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of the Seller's Warranties and Servicing Agreement with respect to
the Mortgage Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Seller's Warranties and Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXX FARGO BANK, N.A.
By:______________________________
Name:_________________________
Its: _________________________
XXXXXX FUNDING LLC
By:______________________________
Name:_________________________
Its: _________________________
By:______________________________
Name:_________________________
Its: _________________________
[__________________________]
By:______________________________
Name:_________________________
Its: _________________________
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT I
FORM OF INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated _________,
200_ ("Agreement") among Securitized Asset Backed Receivables LLC, a Delaware
limited liability company (the "Depositor"), [______________], a
[______________] (the "Underwriter"), and [______________], a [______________]
(the "Indemnifying Party").
W I T N E S S E T H:
WHEREAS, the Indemnifying Party and the Depositor are parties to the
Pooling and Servicing Agreement (as defined herein);
WHEREAS, the Indemnifying Party originated or acquired the Mortgage
Loans and subsequently sold the Mortgage Loans to Xxxxxx Funding LLC (the
"Purchaser"), an affiliate of the Depositor, in anticipation of the
securitization transaction;
WHEREAS, the Indemnifying Party also stands to receive substantial
financial benefits in its capacity as servicer under the Pooling and Servicing
Agreement;
WHEREAS, as an inducement to the Depositor to enter into the Pooling
and Servicing Agreement and the Underwriter to enter into the Underwriting
Agreement (as defined herein), the Indemnifying Party wishes to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
ABS Informational and Computational Material means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as may be amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Free Writing Prospectus: Any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
Indemnified Parties: As defined in Section 3.1.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, any Free Writing Prospectus or any
amendment or supplement thereto (i) contained under the headings
"Summary--Relevant Parties--Responsible Party [and Servicer,"] "The Mortgage
Loan Pool--Underwriting Guidelines" [and "The Servicer"] and (ii) regarding the
Mortgage Loans, the related mortgagors and/or the related Mortgaged Properties
(but in the case of this clause (ii), only to the extent any untrue statement or
omission arose from or is based upon errors or omissions in the information
concerning the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties, as applicable, provided to the Depositor or any affiliate
by or on behalf of the Indemnifying Party)[, and (B) any static pool information
regarding mortgage loans originated or acquired by the Seller [and included in
the Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus or any amendment or
supplement thereto] [incorporated by reference from the Seller's website located
at ______________]].
Offering Circular: The offering circular, dated [________________],
200_, relating to the private offering of the Privately Offered Certificates,
including any structural term sheets, collateral terms sheets and computational
materials used in connection with such offering.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of ___________, 200_, among the Depositor, the Indemnifying
Party, as responsible party and servicer, and [______________].
Privately Offered Certificates: [_______] Trust [_______], Mortgage
Pass-Through Certificates, Series [_______], Class [__] issued pursuant to the
Pooling and Servicing Agreement.
Prospectus Supplement: The preliminary prospectus supplement, dated
___________, 200_, together with the final prospectus supplement, dated
___________, 200_, relating to the offering of the Publicly Offered
Certificates.
Publicly Offered Certificates: [_______] Trust [_______], Mortgage
Pass-Through Certificates, Series [_______], Class [__], Class [__], Class [__],
Class [__], Class [__], Class [__] and Class [__] issued pursuant to the Pooling
and Servicing Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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. 1506-1631 (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.
Underwriting Agreement: The Underwriting Agreement, dated
___________, 200_, among the Depositor and the Underwriter, relating to the sale
of the Publicly Offered Certificates.
1.2 Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
(a) Each party hereto represents and warrants that it has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement;
(b) Each party hereto represents and warrants that this Agreement
has been duly authorized, executed and delivered by such party;
(c) Each party hereto represents and warrants that assuming the due
authorization, execution and delivery by each other party hereto, this Agreement
constitutes the legal, valid and binding obligation of such party and
(d) The Indemnifying Party hereto represents and warrants that the
Indemnifying Party Information satisfies the requirements of the applicable
provisions of Regulation AB.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Indemnifying Party of the Depositor and
the Underwriter. (a) The Indemnifying Party shall indemnify and hold harmless
the Depositor and the Underwriter and their respective affiliates, and their
respective present and former directors, officers, employees, agents and each
Person, if any, that controls the Depositor, the Underwriter or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages, penalties,
fines, forfeitures or liabilities, joint or several, to which each such
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials, any Free Writing Prospectus or any
amendment or supplement thereto, or arise out of or are based upon (i) any
breach of the representation and warranty set forth in Article II(d) above or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission relates to information set forth in the Indemnifying Party Information,
and the Indemnifying Party shall in each case reimburse each Indemnified Party
for any legal or other costs, fees, or expenses reasonably incurred and as
incurred by such Indemnified Party in connection with investigating or defending
any such loss, claim, damage, penalty, fine, forfeiture, liability or action.
The Indemnifying Party's liability under this Section 3.1 shall be in addition
to any other liability that the Indemnifying Party may otherwise have.
(b) If the indemnification provided for in this Section 3.1 shall
for any reason be unavailable to an Indemnified Party under this Section 3.1
(other than due to indemnification not being applicable under Section 3.1(a)),
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages, penalty, fine, forfeiture, costs, fees and
expenses of the nature contemplated herein and incurred by the parties hereto in
such proportions that are appropriate to reflect the relative fault of the
Depositor or the Underwriter, on the one hand, and the Indemnifying Party, on
the other hand, in connection with the applicable misstatements or omissions as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3.1, each director of a party to this Agreement and each Person, if
any, that controls a party to this Agreement within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such party.
3.2 Notification; Procedural Matters. Promptly after receipt by an
Indemnified Party under Section 3.1 of notice of any claim or the commencement
of any action, such Indemnified Party shall, if a claim in respect thereof is to
be made against the Indemnifying Party (or if a claim for contribution is to be
made against another party) under Section 3.1, notify the Indemnifying Party (or
other contributing party) in writing of the claim or the commencement of such
action; provided, however, that the failure to notify the Indemnifying Party (or
other contributing party) shall not relieve it from any liability which it may
have under Section 3.1 except to the extent it has been materially prejudiced by
such failure; and provided, further, however, that the failure to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
any Indemnified Party (or to the party requesting contribution) otherwise than
under Section 3.1. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, or if the use of counsel chosen by the Indemnifying
Party to represent the Indemnified Parties would present such counsel with a
conflict of interest, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
ARTICLE IV
GENERAL
4.1 Survival. This Agreement and the obligations of the parties
hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and Privately Offered Certificates.
4.2 Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, each Indemnified Party and their respective
successors and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflict of laws.
4.4 Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
4.5 Notices. All communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered to:
In the case of the Depositor:
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Vice President
Telephone: (000) 000-0000
with a copy to:
c/o Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [__________]
Telephone: (212) ___-____
In the case of the Underwriter:
[______________]
[______________]
[______________]
Attention:
Telephone:
In the case of the Indemnifying Party:
[______________]
[______________]
[______________]
Attention:
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
[DEPOSITOR]
By:____________________________________
Name:
Title:
[UNDERWRITER]
By:____________________________________
Name:
Title:
[INDEMNIFYING PARTY]
By:____________________________________
Name:
Title:
EXHIBIT J
COMPANY'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ____________________, a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
(1) Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Company which is in full force and effect on
the date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
(2) Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Company which are in effect on the date hereof
and which have been in effect without amendment, waiver, rescission or
modification since ___________.
(3) Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
(4) Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver (a) the Seller's Warranties
and Servicing Agreement (the "Seller's Warranties and Servicing
Agreement"), dated as of [_________], 200[_], between [_________], as
purchaser (the "Purchaser"), and the Company, as seller and (b) the
Custodial Agreement, dated as of [_________], 200[_] (the "Custodial
Agreement"), by and among the Purchaser, the Company and [__________] (the
"Custodian"), [and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original [or facsimile] signature], and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since ____________.
The Seller's Warranties and Servicing Agreement and the Custodial
Agreement may be referred to herein as the "Agreements."
(5) Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Agreements, [the sale of the mortgage loans] or the consummation
of the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
(6) Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Agreements conflicts or will
conflict with or results or will result in a breach of or constitutes or
will constitute a default under the charter or by-laws of the Company or,
to the best of my knowledge, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or
to which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
(7) To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Company
which, in my judgment, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to carry on its
business substantially as now conducted or in any material liability on
the part of the Company or which would draw into question the validity of
the Agreements, or the mortgage loans or of any action taken or to be
taken in connection with the transactions contemplated hereby, or which
would be likely to impair materially the ability of the Company to perform
under the terms of the Agreements.
(8) Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Agreements, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
(9) The Company is duly authorized to engage in the transactions
described and contemplated in the Seller's Warranties and Servicing
Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Date:__________________________________ By:___________________________________
[Seal] Name:
Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date:__________________________________ By:___________________________________
[Seal] Name:
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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EXHIBIT L-2
COUNTRYWIDE SALE AGREEMENT
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
BARCLAYS BANK PLC,
as Purchaser
________________________________________
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of August 30, 2006
________________________________________
Conventional Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I. DEFINITIONS
ARTICLE II. PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser...............................
Section 2.02 Identification of Mortgage Loan Package......................
Section 2.03 Post-Closing Due Diligence...................................
Section 2.04 Credit Document Deficiencies Identified During Due Diligence.
Section 2.05 Delivery of Collateral Files.................................
Section 2.06 Purchase Confirmation........................................
Section 2.07 Closing......................................................
Section 2.08 Payment of the Purchase Proceeds.............................
Section 2.09 Entitlement to Payments on the Mortgage Loans................
Section 2.10 Payment of Costs and Expenses................................
Section 2.11 MERS Mortgage Loans and the MERS System......................
Section 2.12 Required Closing Documents...................................
ARTICLE III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide........
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.............................................
Section 3.03 Remedies for Breach of Representations and Warranties........
Section 3.04 Repurchase of Convertible Mortgage Loans.....................
Section 3.05 Representations and Warranties Respecting the Purchaser......
Section 3.06 Indemnification by the Purchaser.............................
ARTICLE IV. MISCELLANEOUS
Section 4.01 Notices......................................................
Section 4.02 Sale Treatment...............................................
Section 4.03 Exhibits.....................................................
Section 4.04 General Interpretive Principles..............................
Section 4.05 Reproduction of Documents....................................
Section 4.06 Further Agreements...........................................
Section 4.07 Assignment of Mortgage Loans by the Purchaser................
Section 4.08 Conflicts between Transaction Documents......................
Section 4.09 Governing Law................................................
Section 4.10 Severability Clause..........................................
Section 4.11 Successors and Assigns.......................................
Section 4.12 Confidentiality..............................................
Section 4.13 Entire Agreement.............................................
Section 4.14 Counterparts.................................................
Section 4.15 Waivers......................................................
Section 4.16 No Solicitation..............................................
Section 4.17 Consent to Service of Process................................
Exhibit A Schedule of Collateral Documents.............................
Exhibit B Form of Purchase Confirmation................................
Exhibit C Form of Custodial Agreement..................................
Exhibit D Form of Trade Confirmation...................................
Exhibit E Form of Countrywide's Officer's Certification................
Exhibit F Form of Security Release Certification.......................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of August 30, 2006 (the "Agreement"), between Countrywide Home Loans,
Inc., having an address at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Countrywide"), and Barclays Bank PLC, having an address at 000 Xxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000 the ("Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac
Transfer.
Agreement: This Master Mortgage Loan Purchase Agreement,
including all exhibits and supplements hereto, and all amendments
hereof.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less.
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 Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each
Mortgage Loan Package.
Closing Documents: The documents required to be delivered
on each Closing Date pursuant to Section 2.12.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Collateral Documents: The collateral documents pertaining
to each Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect
of a taking of an entire Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Conventional Mortgage Loan: A Mortgage Loan that is not
insured by the FHA or guaranteed by the VA.
Convertible Mortgage Loan: Any Adjustable Rate Mortgage Loan that
contains a provision whereby the Mortgagor is permitted to convert the Mortgage
Loan to a fixed-rate mortgage loan in accordance with the terms of the related
Mortgage Note.
Countrywide: Countrywide Home Loans, Inc., or any successor
or assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and
maintained pursuant to Section 3.04 of the Servicing Agreement, each of
which shall be an Eligible Account.
Custodial Agreement: The agreement governing the retention
of the Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in
interest or assign, or such other custodian that may be designated by
Purchaser from time to time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Determination Date: The Business Day immediately preceding
the related Remittance Date.
Due Date: The first day of the month on which the Monthly
Payment is due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or
any successor organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of
the Mortgage Loans to Xxxxxx Xxx.
First Lien Mortgage Loan: Any Mortgage Loan secured by a
first lien on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or
any successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxxx Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
Funding Deadline: With respect to each Closing Date, one
o'clock (1:00) p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) that is a Section 32 Mortgage
Loan under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b)
(classified as a "high cost" or similarly defined loan under any other
applicable state, federal or local law or (c) categorized as High Cost pursuant
to Appendix E of Standard & Poor's Glossary, as applicable at the time of
origination of the Mortgage Loan.
HUD: The Department of Housing and Urban Development or any
federal agency or official thereof which may from time to time succeed
to the functions thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on
each Interest Adjustment Date the applicable index as set forth in the
related Mortgage Note.
Interim Funder: With respect to each MERS Mortgage Loan, the Person
named on the MERS System as the interim funder pursuant to the MERS Procedures
Manual.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Investor: With respect to each MERS Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee's sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 3.13 of the Servicing
Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it
may be amended, supplemented or otherwise modified from time to time.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the
Purchaser pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and zipcode of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty window - flag/term, and (xxi) interest-only term.
The information set forth in the Mortgage Loan Schedule relating to the Mortgage
Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect to any LPMI
Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate,
if applicable) securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagee: The mortgagee or beneficiary named in the
Mortgage and the successors and assigns of such mortgagee or
beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by (a) an assistant Vice
President or higher ranking officer and (b) by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of Countrywide, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may
be an employee of the party on behalf of whom the opinion is being
given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgaged-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02 of this Agreement, are intended to be
sold under this Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting
a Preliminary Mortgage Loan Package.
Prepayment Penalty:__With respect to each Mortgage Loan, a
prepayment penalty, charge, premium or fee, if any, payable upon the Principal
Prepayment in full or part of such Mortgage Loan, as set forth in the related
Mortgage Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the second
day of the calendar month preceding the month of such Remittance Date, through
the first day of the calendar month of such Remittance Date.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Countrywide and the Purchaser in connection
with the purchase and sale of each Mortgage Loan Package, which sets forth the
terms relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Countrywide in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 4.07 hereof.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., a Convertible
Mortgage Loan or a Fixed Rate Mortgage Loan).
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of the Servicing Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of the Servicing Agreement.
RESPA: Real Estate Settlement Procedures Act, as amended
from time to time.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a
second lien on the related Mortgaged Property.
Servicing Agreement: The agreement dated as of August 30, 2006 and
signed by the Purchaser and Servicing LP with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed, and shall be prorated (based upon the number of days of the related
month Countrywide so acted as servicer relative to the total number of days in
that month) for each part thereof. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from, the
interest portion of such Monthly Payment collected by Countrywide, or as
otherwise provided herein. Subject to the foregoing, and with respect to each
Mortgage Loan, Countrywide shall be entitled to receive its Servicing Fee
through the disposition of any related REO Property and the Servicing Fee
payable with respect to any REO Property shall be based on the Stated Principal
Balance of the related Mortgage Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the
rate per annum set forth in the applicable Trade Confirmation or
Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary
applicable at the time of origination of the Mortgage Loan.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Countrywide and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan,
the related Trade Confirmation, the related Purchase Confirmation, this
Agreement and the Servicing Agreement.
Underwriting Guidelines: The applicable underwriting
guidelines of the Seller, a copy of which is attached as an exhibit to
the related Trade Confirmation.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser
of some or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser.
(a) Review of Credit File. At least five (5) Business Days prior to
the Closing Date, Countrywide shall make available to the Purchaser the Credit
File for each Preliminary Mortgage Loan in the related Preliminary Mortgage Loan
Package. The Purchaser shall have the right to review the Credit File for each
such Preliminary Mortgage Loan, at Countrywide's offices or such other location
agreed upon by the Purchaser and Countrywide, for the purpose of determining
whether each Preliminary Mortgage Loan conforms in all material respects to the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser's reasonable and good faith discretion. In the
event that the Purchaser rejects any Preliminary Mortgage Loan based on such
review, reasonable discretion that any Mortgage Loan is not in compliance in all
material respects with the applicable terms of the Transaction Documents, such
Mortgage Loan shall be deleted from the related Mortgage Loan Schedule and
Countrywide shall have the right to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. The Purchaser shall use its reasonable best efforts
to conduct its due diligence, and to convey the results thereof to Countrywide,
within the time and in the manner necessary to permit Countrywide to rebut or
cure any Preliminary Mortgage Loan or to substitute replacement Preliminary
Mortgage Loans as permitted herein.
(b) Rejection of Preliminary Mortgage Loans. Without limiting the
generality of the foregoing, in the event that the Purchaser rejects Preliminary
Mortgage Loans (i) comprising more than ten percent (10%) of the related
Preliminary Mortgage Loan Package (as measured by unpaid principal balance), or
(ii) for reasons other than as permitted under this Agreement or the Trade
Confirmation, Countrywide may, in its sole discretion, rescind its offer to sell
any of the Preliminary Mortgage Loans relating thereto to the Purchaser and
Countrywide shall have no liability therefor.
Section 2.02 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.03 Post-Closing Due Diligence.
In the event that the Purchaser fails to complete its due diligence,
as contemplated in Section 2.01 of this Agreement, with respect to any
Preliminary Mortgage Loan, the Purchaser and Countrywide may nonetheless
mutually agree to the purchase and sale of such Mortgage Loan as contemplated
hereunder, and upon such mutual agreement, if the Purchaser provides notice to
Countrywide of such Mortgage Loan and such Mortgage Loan is identified as such
in the Purchase Confirmation (as used therein, the "Pending Mortgage Loans"),
the Purchaser shall have the right to review the related Credit File for such
Mortgage Loan within ten (10) Business Days after the Closing Date and, based on
such review and within such ten (10) Business Days period, request that
Countrywide repurchase any Pending Mortgage Loan that the Purchaser reasonably
and in good faith contends does not conform in all material respects to the
applicable terms of the Transaction Documents. Countrywide shall have ten (10)
Business Days from the date of its receipt of such request to either (a)
repurchase such Mortgage Loan at the purchase price for such Mortgage Loan (as
calculated under the related Transaction Documents, as applicable) plus accrued
and unpaid interest, or (b) provide evidence reasonably satisfactory to the
Purchaser that such Mortgage Loan does in fact conform to the terms of the
Transaction Documents, as applicable. In the event that Countrywide must
repurchase any Mortgage Loan in accordance with this Section 2.03 or pursuant to
any other applicable term contained in the Transaction Documents, Countrywide
may, at its option, substitute replacement Mortgage Loans conforming in all
material respects to the applicable terms contained in the related Transaction
Documents. The rights and remedies set forth in this Section 2.03 are in
addition to those set forth in Section 3.03 hereof.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File is
missing material documentation (as used therein, the "Missing Credit
Documents"), Countrywide agrees to use its best efforts to procure each such
Missing Credit Document within sixty (60) days following the related Closing
Date. In the event of a default by a Mortgagor or any material impairment of the
Mortgaged Property, in either case directly arising from a breach of
Countrywide's obligation to deliver the Missing Credit Document within the time
specified above, Countrywide shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
(a) Custodial Agreement. Countrywide shall, on or before the
Business Day prior to the related Closing Date, deliver to the Custodian the
Collateral File for each Mortgage Loan in the Mortgage Loan Package. The parties
hereto shall execute the Custodial Agreement on or prior to the initial Closing
Date as required under Section 2.12. Countrywide shall comply with its
obligations under the Custodial Agreement and the Purchaser shall pay all fees
and expenses of the Custodian.
(b) Missing Collateral Documents. In the event that any of the
original Collateral Documents set forth in clauses (3) through (9) of Exhibit A
hereto are not delivered to the Custodian on or before the Closing Date (each, a
"Missing Collateral Document"), then Countrywide shall have (i) with respect to
any Missing Collateral Document sent for recording, twelve (12) months from the
related Closing Date, or (ii) with respect to all other Missing Collateral
Documents, one-hundred twenty (120) days from the Closing Date, to deliver to
the Purchaser such Missing Collateral Documents; provided, however, that with
respect to any Government Mortgage Loan, Countrywide agrees to procure each such
Missing Collateral Document within sixty (60) days following the FHA's or the
VA's, as applicable, deadline for procuring such documents. Notwithstanding the
foregoing, Countrywide shall not be deemed to be in breach of this Agreement if
its failure to deliver to the Purchaser any Missing Collateral Document within
the time specified above is due solely to (i) the failure of the applicable
recorder's office to return a Missing Collateral Document that was sent for
recording or (ii) the failure of the title insurer to issue and deliver the
original mortgagee title policy, except where such refusal to issue the policy
is based on a claim that the title insurer is under no obligation to issue such
policy.
(c) Other Documents. Countrywide shall forward to the Purchaser in a
timely manner any original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance with
this Agreement upon execution and, if applicable, recordation thereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Countrywide shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(c) Both parties shall have executed the related Trade Confirmation
and Purchase Confirmation;
(d) at least two Business Days prior to the related Closing Date,
Countrywide shall deliver to the Purchaser a a listing on a loan level basis of
the necessary information to compute the Purchase Proceeds of the Mortgage Loans
delivered on such Closing Date (including accrued interest) in a format as
mutually agreed upon by Countrywide and the Purchaser, and prepare a Mortgage
Loan Schedule;
(e) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents as specified in Section
2.12 of this Agreement, in such forms as are agreed upon by the parties, duly
executed by all signatories as required pursuant to the terms hereof; and
(f) Countrywide shall have delivered to the Custodian all Collateral
Documents required pursuant to Section 2.05 of this Agreement.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07 hereof, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Countrywide on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date).
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. To the extent permitted by
applicable law, each of the Assignments of Mortgage is subject to recordation in
all appropriate public offices for real property records in all the counties or
their comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
only the first of such recordation to be effected shall be at Countrywide's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option and all subsequent recordations
shall be at the expense of the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05 of this Agreement, provide
the Purchaser with the original Mortgage with evidence of registration with MERS
and, as applicable, the originals of all intervening assignments of the Mortgage
with evidence of recording thereon prior to the registration of the Mortgage
Loan with the MERS System.
With respect to each MERS Mortgage Loan, Countrywide shall designate
the Purchaser as the Investor and the Custodian as custodian, and no Person
shall be listed as Interim Funder on the MERS System.
In connection with the MERS System, Countrywide is hereby authorized
and empowered, in its own name, to register, or change the registration of any
MERS Mortgage Loan to effectuate such registration. Further, Countrywide is
authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
Section 2.12 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(c) the related Mortgage Loan Schedule attached to the related
Purchase Confirmation as the Mortgage Loan Schedule thereto;
(d) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit E hereto with respect to Countrywide,
including all attachments thereto;
(e) a Security Release Certification, in the form of Exhibit F, as
applicable, hereto executed by any person, if any of the Mortgage Loans are
subject to a security interest, pledge or hypothecation for the benefit of such
person; and
Countrywide shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by Countrywide,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of Countrywide's certificate of
incorporation or by-laws or result in a material breach of any legal restriction
or any material agreement or instrument to which Countrywide is now a party or
by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Countrywide
or its property is subject;
(d) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of HUD
pursuant to Sections 203 and 211 of the National Housing Act. No event has
occurred, including a change in insurance coverage, which would make Countrywide
unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of Countrywide contemplated
herein;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(g) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, , and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by Countrywide pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(h) Ability to Perform; Solvency. Countrywide does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. Countrywide is solvent and the sale
of the Mortgage Loans will not cause Countrywide to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Countrywide's creditors;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form or other document furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading;
(j) No Brokers. Countrywide has not dealt with any third party
broker, investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(k) Sale Treatment. Countrywide intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of Countrywide and
Countrywide has determined that the disposition of the Mortgage Loans pursuant
to this Agreement will be afforded sale treatment for tax and accounting
purposes; and
(l) Reasonable Purchase Price. The consideration received by
Countrywide upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Countrywide represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
prior to the related Cut-off Date for such Mortgage Loan under the terms of the
Mortgage Note have been made; Countrywide has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Mortgage Loan; and there has been
no delinquency of more than thirty (30) days in any payment by the Mortgagor
thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. With
respect to each Mortgage Loan, there is no delinquent taxes and insurance
premiums and, to the best of Countrywide's knowledge, there is no delinquent
ground rents, water charges, sewer rents, assessments, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser or its designee, all in accordance with this
Agreement. The substance of any such waiver, alteration or modification has been
approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and its terms are
reflected on the related Mortgage Loan Schedule. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement approved
by the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceedings at the
time the Mortgage Loan was originated;
(f) Hazard and Flood Insurance. All buildings or other improvements
upon the Mortgaged Property are insured by an insurer acceptable to an Agency
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, and such insurer
is licensed to do business in the state where the Mortgaged Property is located.
All such insurance policies contain a standard mortgagee clause naming
Countrywide, its successors and assigns as mortgagee, and all premiums thereon
have been paid. If, upon the origination of the Mortgage Loan, the Mortgaged
Property was, or was subsequently deemed to be, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy that meets the requirements of the current guidelines of the
Federal Insurance Administration (or any successor thereto) and conforms to the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. Any and all requirements of any
applicable federal, state or local law including, without limitation, usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all anti-predatory and abusive laws
applicable to the Mortgage Loan including, without limitation, any applicable
law governing Prepayment Penalties, have been complied with;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(i) Enforceability of Mortgage Documents. The Mortgage Note and the
related Mortgage are genuine and each is the legal, valid and binding obligation
of the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws. All parties to the Mortgage Note, and the Mortgage had legal
capacity to enter into the Mortgage Note and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(j) Valid First or Second Lien. Each related Mortgage is a valid,
subsisting enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) on
the related Mortgaged Property, including all improvements on the Mortgaged
Property. The lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and assessments not yet
due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value (as evidenced by an appraisal referred to in such
definition) of the Mortgaged Property set forth in such appraisal;
(iii) with respect to a Second Lien Mortgage Loan only, the lien of
the first mortgage on the Mortgaged Property; and
(iv) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) and
first priority (with respect to a First Lien Mortgage Loan) or second priority
(with respect to a Second Lien Mortgage Loan) security interest on the property
described therein and Countrywide has full right to sell and assign the same to
the Purchaser (subject to (i)-(iv) above).
(k) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has 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 the terms of this Agreement;
(m) Title Insurance. Each Mortgage Loan that is a First Lien
Mortgage Loan and each Mortgage Loan that is a Second Lien Mortgage Loan with an
original principal balance greater than $100,000, in either case, is covered by
a lender's title insurance policy acceptable to an Agency, issued by a title
insurer acceptable to an Agency and qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring (subject to the
exceptions contained in Section 3.02(j)(i), (i) and (iv) above) Countrywide, its
successors and assigns as to the first or second priority lien of the Mortgage,
as applicable. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Countrywide is the sole insured of such
lender's title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including Countrywide, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(n) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and Countrywide has not waived any default, breach, violation or
event of acceleration, and with respect to any Second Lien Mortgage Loan,
Countrywide has not received a written notice of default of any senior mortgage
loan related to the Mortgaged Property which has not been cured;
(o) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(p) Origination and Collection Practices. The origination, servicing
and collection practices used by Countrywide with respect to each Mortgage Note
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, if any, all such payments are in the possession of, or
under the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. With respect to Adjustable Rate Mortgage Loans, all Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to applicable state, federal and local law has been properly paid and
credited;
(q) No Condemnation or Damage. To the best of Countrywide's
knowledge, the Mortgaged Property is free of material damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(r) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(s) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(t) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder
for appraisers, duly appointed by the originator, that had no interest, direct
or indirect in the Mortgaged Property, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency;
(u) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(v) CLTV and LTV, Private Mortgage Insurance, FHA Insurance and VA
Guarantees. No Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV
greater than 100%. No Mortgage Loan has an LTV greater than 100%. Each
Conventional Mortgage Loan, except a Second Lien Mortgage Loan or a Mortgage
Loan underwritten in accordance with sub-prime credit underwriting guidelines,
with an LTV at origination in excess of eighty percent (80%) is and will be
subject to a PMI Policy, which insures that portion of the Mortgage Loan over
seventy-five percent (75%) of the Appraised Value of the related Mortgaged
Property. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such PMI Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan. Each Government Mortgage Loan either has, or will
have in due course, a valid and enforceable MIC or LGC, as applicable and, in
each case, all premiums due thereunder have been paid. []Any Mortgage Loan
subject to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI
Policy and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Note is
net of any such insurance premium if the related PMI Policy is lender-paid;
(w) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same including certificates of
occupancy, have been made or obtained from the appropriate authorities;
(x) Assignment of Mortgage. Except for the absence of recording
information, the Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located;
(y) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(z) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(aa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan and no Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is governed by the Georgia Fair Lending Act;
(bb) Type of Mortgaged Property. The Mortgaged Property is a fee
simple estate or a leasehold estate located in a jurisdiction in which the use
of a leasehold estate for residential properties is an accepted practice that
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two to four residential dwelling, or an
individual residential condominium unit in a condominium project, or an
individual unit in a planned unit development, or an individual unit in a
residential cooperative housing corporation; provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform in all material respects with the Underwriting
Guidelines. At the time of origination, no portion of the Mortgaged Property was
used for commercial purposes; provided, that Mortgaged Properties which contain
a home office shall not be considered as being used for commercial purposes.
None of the Mortgaged Properties are log homes, mobile homes, geodesic domes or
any other properties not eligible for financing pursuant to the applicable
Underwriting Guidelines;
(cc) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten generally in accordance with the Underwriting
Guidelines;
(dd) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(ee) Due On Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(ff) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(hh) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving any Mortgaged Property of which Countrywide is
aware in which compliance with any environmental law, rule or regulation is an
issue;
(ii) Servicemembers' Civil Relief Act. The Mortgagor has not
notified Countrywide, and Countrywide has no knowledge of any relief requested
to the Mortgagor under the Relief Act;
(jj) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of the Mortgage
Loans;
(kk) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct to perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade in or exchange of a Mortgaged Property;
(ll) Credit Information. For each Mortgage Loan, Countrywide or its
designee has furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and requisite information on its borrower
credit files to each of the following credit repositories: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis;
(mm) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; and (6) the use of leasehold estates for residential properties is
an accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(nn) Prepayment Penalty. With respect to each Mortgage Loan that has
a Prepayment Penalty, each such Prepayment Penalty is enforceable and is
permitted pursuant to applicable federal, state and local law. With respect to
Mortgage Loans originated prior to October 1, 2002, no such Prepayment Penalty
may be imposed for a term in excess of five (5) years following origination;
(oo) Payment Terms. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as
set forth on the related Mortgage Note. Except with respect to any Option ARM
Mortgage Loan, the Mortgage Note is payable in monthly installments of principal
and interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than fourty years from
commencement of amortization. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgage Loan is payable on the first day of each month.
Except for Balloon Mortgage Loans, the Mortgage Loan does not require a balloon
payment on its stated maturity date;
(pp) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans;
(qq) Compliance with Anti-Money Laundering Laws. Countrywide has
established an anti-money laundering compliance program to the extent required
by applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2003, and the laws and regulations
administered by the U.S. Department of Treasury's Office of Foreign Assets
Control ("OFAC"), which prohibit dealings with certain countries, territories,
entities and individuals named in OFAC's Sanction Programs and on the Specially
Designated Nationals and Blocked Persons List. The Mortgage Loans have been
originated, and documentation related thereto shall be maintained, in material
compliance with such program; and
(rr) Fraud. No fraud, error, omission, misrepresentation or similar
occurrence, with respect to a Mortgage Loan has taken place on the part of
Countrywide or, to the best of Countrywide's knowledge, any other Person,
including without limitation, the Mortgagor, any appraiser, or any builder or
developer involved in connection with the origination of the Mortgage Loan or in
the application of any insurance in relation to such Mortgage Loan.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 of this Agreement shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Collateral
Documents or Credit File. Upon discovery by either Countrywide or the Purchaser
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the value of one or more of the related
Mortgage Loans, the party discovering such breach shall give prompt written
notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, or the Purchaser's interests therein, Countrywide shall use
its best efforts to promptly cure such breach in all material respects, and, if
such breach cannot be cured, Countrywide shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
hereof and such breach cannot be cured within sixty (60) days of the earlier of
either discovery by or notice to Countrywide of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, be repurchased
by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. However, if the breach shall involve
a representation or warranty set forth in Section 3.02, (Countrywide shall,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans. If Countrywide has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Remittance Date,
after deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Countrywide shall arrange for the reassignment of the Deleted Mortgage Loan and
release of the related Collateral File to Countrywide and the delivery to
Countrywide of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event Countrywide determines to substitute a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place and amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify the Qualified Substitute
Mortgage Loan(s) and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, Countrywide shall be deemed to have made
as to such Qualified Substitute Mortgage Loan(s) the representations and
warranties except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. Countrywide
shall effect such substitution by delivering to the Custodian or to such other
party as the Purchaser may designate in writing the Collateral Documents for
such Qualified Substitute Mortgage Loan(s). Countrywide shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan(s) in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by Countrywide. For the
month of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and
Countrywide shall thereafter be entitled to retain all amounts subsequently
received by Countrywide in respect of such Deleted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 4.01 of the Servicing Agreement. Accordingly,
on the date of such substitution, Countrywide shall deposit from its own funds
into the Custodial Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation,
Countrywide shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and expenses resulting from, a breach of any representation or warranty
contained in Sections 3.01 and 3.02 of this Agreement that materially and
adversely affects the value of one or more Mortgage Loans or the Purchaser's
interest therein.
(d) Sole Remedy. With respect to the breach of a representation and
warranty set forth in Section 3.01 and Section 3.02 hereof with respect to a
Mortgage Loan, the obligation under this Section 3.03 of Countrywide to cure,
repurchase, indemnify or replace such Mortgage Loan shall constitute the sole
remedy against Countrywide respecting such breach available to the Purchaser.
(e) Accrual of Cause of Action. Any cause of action against
Countrywide relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 hereof shall accrue as to any Mortgage
Loan upon (i) discovery of such breach by the Purchaser or notice thereof by
Countrywide to the Purchaser, (ii) failure by Countrywide to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon
Countrywide by the Purchaser for compliance with the relevant provisions of this
Agreement.
Section 3.04 Repurchase of Convertible Mortgage Loans.
In the event a Mortgagor exercises the option to convert a
Convertible Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the
terms of the related Mortgage Note, Countrywide shall repurchase such
Convertible Mortgage Loan within thirty (30) days of such conversion taking
effect at a price equal to on hundred percent (100%) of the unpaid principal
balance of such Convertible Mortgage Loan at the time of such conversion plus
accrued interest thereon through the last day of the month of repurchase at the
Mortgage Loan Remittance Rate; provided, however, no interest shall be due and
payable if a Convertible Mortgage Loan is repurchased on the first day of a
month. Any repurchase of a Convertible Mortgage Loan(s) pursuant to the
foregoing provisions of this Section 3.04 shall be accomplished by deposit in
the Custodial Account of the amount of said repurchase price for distribution to
the Purchaser on the next scheduled Remittance Date.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide
that, as of each Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and expenses resulting from, a breach of any representation
or warranty contained in Sections 3.05. With respect to the breach of a
representation and warranty set forth in Section 3.05 hereof, the obligation
under this Section 3.06 of the Purchaser to indemnify Countrywide shall
constitute the sole remedy against the Purchaser respecting such breach
available to Countrywide.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxx
With copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
With a copy to:
Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
E mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 4.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 4.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 4.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 4.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 4.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 4.07 Assignment of Mortgage Loans by the Purchaser.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer;
provided, however, that the transferee will not be deemed to be the Purchaser
hereunder unless such transferee shall agree in writing to be bound by the terms
of this Agreement in the form of an assignment, assumption and recognition
agreement ("AAR") reasonably acceptable to the Purchaser and Countrywide and an
original counterpart of the AAR shall have been executed by the Purchaser and
the transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package.
Section 4.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement and either the related Trade Confirmation
or the related Purchase Confirmation, the terms of the related Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of the Trade Confirmation and the
Purchase Confirmation, the terms of the Purchase Confirmation shall control. In
the event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement and the Servicing Agreement, the terms of this
Agreement shall control.
Section 4.09 Governing Law.
This Agreement shall be deemed in effect when fully executed and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by applicable
federal law.
Section 4.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 4.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 4.07 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 4.12 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 4.13 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to the sale of each Mortgage Loan Package and supersede all prior or
contemporaneous oral or written communications regarding same. Countrywide and
the Purchaser understand and agree that no employee, agent or other
representative of Countrywide or the Purchaser has any authority to bind such
party with regard to any statement, representation, warranty or other expression
unless said statement, representation, warranty or other expression is
specifically included within the express terms of this Agreement or the related
Trade Confirmation or Purchase Confirmation. Neither this Agreement nor the
related Trade Confirmation or Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 4.14 Counterparts.
This Agreement may be executed simultaneously in any number of counterparts.
Each counterpart shall be deemed to be an original, and all such counterparts
shall constitute one and the same instrument.
Section 4.15 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 4.16 No Solicitation
The Purchaser shall not take any action or cause any action to be
taken by any of its employees, agents or affiliates, or by any independent
contractors acting on the Purchaser's behalf, to solicit any borrower in any
manner whatsoever, including but not limited to, soliciting a borrower to prepay
or refinance a Mortgage Loan. Furthermore, neither the Purchaser nor any of its
affiliates shall directly or indirectly provide information to any third party
for purposes of soliciting the borrowers related to the Mortgage Loans. It is
understood that promotions undertaken by the Purchaser or its affiliates which
are directed to the general public at large (i.e., newspaper advertisements,
radio or T.V. ads, etc.) and not specifically directed to the borrowers related
to the Mortgage Loans shall not constitute a breach of this section. Countrywide
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on Countrywide's behalf, to personally, by telephone or
mail, solicit the borrower under any Mortgage Loan for the purpose of
refinancing such Mortgage Loan; provided, that Countrywide may solicit any
borrower for whom Countrywide has received a request for verification of
mortgage, a request for demand for payoff, a borrower initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan, or
the borrower initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
concern optional insurance products or other additional products shall not
constitute solicitation nor is Countrywide prohibited from responding to
unsolicited requests or inquiries made by a borrower or an agent of a borrower.
Notwithstanding the foregoing, the following solicitations, if undertaken by
Countrywide or any affiliate of Countrywide, shall not be prohibited: (i)
solicitations or promotions that are directed to the general public at large,
including, without limitation, mass mailings based on mailing lists and
newspaper, radio, television and other mass media advertisements and (ii)
borrower messages included on, and statement inserts provided with, the monthly
statements sent to borrowers; provided, however, that similar messages and
inserts are sent to all other borrowers of similar type mortgage loans serviced
by Countrywide and such affiliates, including, but not limited to, those
mortgage loans serviced for the Countrywide's and/or such affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or Mortgage Loans specifically), provided,
that such solicitations are made to all borrowers of mortgage loans serviced by
Countrywide and such affiliates with respect to mortgage loans meeting such
defined parameters, including, but not limited to, those mortgage loans serviced
for the Countrywide's and/or such affiliates own account.
Section 4.17 Consent to Service of Process.
EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE SATE OF NEW YORK AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN
ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT
IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF
PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS
PROVIDED FOR NOTICES HEREUNDER.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
Countrywide
By:______________________________________
Name: Xxxxxx Xxxxx
Title:
BARCLAYS BANK PLC,
the Purchaser
By:______________________________________
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or a lost note affidavit in a
form acceptable to an Agency) bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of Countrywide by an authorized officer.
2. Assignment of Mortgage: The original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon,
if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Title Policy: If applicable, the original mortgagee title insurance policy
(or the equivalent thereof with respect to any Mortgage Loan in which the
related Mortgaged Property is located in a jurisdiction where such title
insurance is not customarily provided) if such title insurance policy has
been issued by the related title company on or prior to the Closing Date.
8. Loan Guaranty Certificate: The original Loan Guaranty Certificate, if
applicable.
9. Mortgage Insurance Certificate: The original Mortgage Insurance
Certificate, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [CONTACT, TITLE]
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between
Countrywide Home Loans, Inc. ("Countrywide") and Barclays Bank PLC ("Purchaser")
sets forth our agreement pursuant to which Purchaser is purchasing, and
Countrywide is selling those certain mortgage loans identified in Exhibit A
hereto and more particularly described herein, excluding the servicing rights
related thereto (the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of [DATE], between Countrywide and Purchaser (as
amended herein and otherwise, the "Purchase Agreement") and that certain
Servicing Agreement dated as of [DATE] between Countrywide and Purchaser (both
the Purchase Agreement and the Servicing Agreement shall be referred to herein,
as applicable, as the "Agreement"). By executing this Purchase Confirmation,
each of Countrywide and Purchaser again makes, with respect to itself and each
Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the Purchase
Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Purchase Agreement, all of the right, title and interest of Countrywide in and
to the Mortgage Loans, excluding the servicing rights relating thereto. Each
Mortgage Loan shall be serviced by Countrywide pursuant to the terms of the
Servicing Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable index
rate shall be a rate per annum equal to [the weekly average yield on U.S.
Treasury securities adjusted to a constant maturity of one year, as published by
the Board of Governors of the Federal Reserve System in Statistical Release No.
H.15] [the average of interbank offered rates for six-month U.S. dollar
denominated deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by Xxxxxx Xxx] [the 11th District Cost of Funds as made
available by the Federal Home Loan Bank] [the weekly average yield on
certificates of deposit adjusted to a constant maturity of six months as
published by the Board of Governors of the Federal Reserve System in Statistical
Release No. H.15 or a similar publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C] hereto.
Notwithstanding anything contained in Section 2.04 of the Purchase Agreement to
the contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the event
of a default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Countrywide's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Purchase
Agreement.
[f. Pending Mortgage Loans: As set forth in Exhibit [C] hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans] [each
Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B] hereto, the sum
of (a) the product of (i) the Cut-off Date Balance of [such Mortgage Loan] [such
Mortgage Loans], and (ii) the purchase price percentage set forth in Exhibit [A]
hereto for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from
the Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the period
prior to the initial Interest Adjustment Date, [0.25]% and, thereafter,
[0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Conventional] [Government]
Mortgage Loan and a [Adjustable Rate] [Balloon] [Convertible] [Fixed Rate]
Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Countrywide's credit underwriting guidelines in
effect at the time such Mortgage Loan was originated] [conforms to the Xxxxxx
Xxx or Xxxxxxx Mac mortgage eligibility criteria (as such criteria applies to
Countrywide) and is eligible for sale to, and securitization by, Xxxxxx Mae or
Xxxxxxx Mac] [conforms in all material respects to the GNMA mortgage eligibility
criteria and is eligible for sale and securitization into a GNMA mortgage-backed
security] [at the time of origination was underwritten to guidelines which are
consistent with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By:_________________________________ By:____________________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
LOAN COUNT LOAN NUMBER DOCUMENT
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
LOAN COUNT LOAN NUMBER DOCUMENT
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [CONTACT, TITLE]
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Barclays Bank
PLC (Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Barclays Bank
PLC ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide") pursuant to
which Purchaser has agreed to purchase, and Countrywide has agreed to sell,
those certain mortgage loans [identified][summarized] in Exhibit A hereto (the
"Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year][, provided, however, that the
parties shall use their best efforts to consummate the transaction prior to
[DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit A.
[Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo]["A"][A-"]["Alt A"] [Sub-prime] [Conforming]
[Conventional] [Government] [Second Lien/HELOC] [[fixed][(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and serviced on
a [scheduled/scheduled] [actual/actual] [scheduled][actual] basis for the
servicing fee rate [equal to FEE% per annum][set forth in Exhibit A [for each
Mortgage Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: Barclays Bank PLC shall be entitled to any
penalties resulting from the prepayment of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving Agreed to
and Accepted by: Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By:_________________________________ By:__________________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
TRADE CONFIRMATION
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT B
to
TRADE CONFIRMATION
UNDERWRITING GUIDELINES
(attached)
EXHIBIT E
COUNTRYWIDE HOME LOANS, INC.
OFFICER'S CERTIFICATE
I, [NAME], hereby certify that I am the duly elected [TITLE] of
Countrywide Home Loans, Inc., a corporation organized under the laws of the
State of New York ( "Countrywide") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the Certificate of Incorporation of Countrywide which is in full force
and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the By-laws of Countrywide which are in effect on the date hereof.
3. Attached hereto as Exhibit 3 is a Certificate of Good Standing of
Countrywide issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of Countrywide
authorizing Countrywide to execute and deliver each of the [Master
Mortgage Loan Purchase Agreement and Servicing Agreement], dated as of
[DATE], by and among [PARTY] (the "Purchaser"), and Countrywide (the "Sale
and Servicing Agreement")] and to endorse the [Mortgage Notes and execute
the Assignments of Mortgages by facsimile signature], and such resolutions
are in effect on the date hereof.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of Countrywide, signed (a) the [Sale and
Servicing Agreement], and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of Countrywide, who holds the office set forth opposite his
or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of Countrywide.
Dated: [DATE]
By:________________________________________
Name: [NAME]
Title: [TITLE]
[SEAL]
I, [NAME OF ASSISTANT SECRETARY], an Assistant Secretary of
Countrywide, hereby certify that [NAME] is the duly elected, qualified and
acting [TITLE] of Countrywide and that the signature appearing above is her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: [DATE]
By:________________________________________
Name: [NAME]
Title: Assistant Secretary
[SEAL]
EXHIBIT 1
to
OFFICER'S CERTIFICATE
EXHIBIT 2
to
OFFICER'S CERTIFICATE
EXHIBIT 3
to
OFFICER'S CERTIFICATE
EXHIBIT 4
to
OFFICER'S CERTIFICATE
RESOLUTIONS ADOPTED BY
THE BOARD OF DIRECTORS OF
COUNTRYWIDE HOME LOANS, INC.
AS OF [DATE]
EXHIBIT 5
to
OFFICER'S CERTIFICATE
NAME TITLE SIGNATURE
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
------------------------ ----------------------- -------------------------------
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank PLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of ______ __, 200_, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company or its designees, as of the date and time
of the sale of such Mortgage Loans to Barclays Bank PLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
_______________________________________
(Name)
_______________________________________
(Address)
_______________________________________
_______________________________________
_______________________________________
By:____________________________________
II. Certification of Release
The Company named below hereby certifies to Barclays Bank PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
By:
Title:
Date:
EXHIBIT M
COUNTRYWIDE SERVICING AGREEMENT
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS INC.
(Countrywide)
and
BARCLAYS BANK PLC
(Purchaser)
Dated as of August 30th, 2006
Conventional Residential Mortgage Loans
PRELIMINARY STATEMENT
ARTICLE I. DEFINITIONS
ARTICLE II.
Section 2.01 Representations and Warranties Respecting Countrywide..........
ARTICLE III. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer...............................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Realization Upon Defaulted Mortgage Loans....................
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.........................................
Section 3.05 Permitted Withdrawals From the Custodial Account.............
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts...................................................
Section 3.07 Permitted Withdrawals From Escrow Account....................
Section 3.08 Transfer of Accounts.........................................
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder........
Section 3.10 Maintenance of Hazard Insurance..............................
Section 3.11 [Reserved]...................................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance................
Section 3.13 Title, Management and Disposition of REO Property............
Section 3.14 Notification of Adjustments..................................
Section 3.15 Notification of Maturity Date................................
Section 3.16 Assumption Agreements........................................
Section 3.17 Satisfaction of Mortgages and Release of Collateral
Files......................................................
Section 3.18 Servicing Compensation.......................................
Section 3.19 Restoration of Mortgaged Property............................
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999...............
ARTICLE IV. PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions................................................
Section 4.02 Periodic Reports to the Purchaser............................
Section 4.03 Monthly Advances by Countrywide..............................
Section 4.04 Annual Statement as to Compliance............................
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report...........................................
Section 4.06 Purchaser's Access to Countrywide's Records..................
ARTICLE V.
Section 5.01 Indemnification by Countrywide...............................
Section 5.02 Merger or Consolidation of Countrywide.......................
Section 5.03 Limitation on Liability of Countrywide and Others............
Section 5.04 No Transfer of Servicing.....................................
Section 5.05 Subservicing.................................................
ARTICLE VI. TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default.......................
Section 6.02 Termination by Other Means...................................
ARTICLE VII. MISCELLANEOUS
Section 7.01 Notices......................................................
Section 7.02 Exhibits.....................................................
Section 7.03 General Interpretive Principles..............................
Section 7.04 Reproduction of Documents....................................
Section 7.05 Further Agreements...........................................
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.....................................
Section 7.07 Conflicts between Transaction Documents......................
Section 7.08 Governing Law................................................
Section 7.09 Severability Clause..........................................
Section 7.10 Successors and Assigns.......................................
Section 7.11 Confidentiality..............................................
Section 7.12 Entire Agreement.............................................
Section 7.13 Counterparts.................................................
Section 7.14 Waivers......................................................
Section 7.15 Waiver of Trial by Jury......................................
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of August 30th, 2006, is by
and between COUNTRYWIDE HOME LOANS INC., in its capacity as servicer
("Countrywide"), and Barclays Bank PLC, and its permitted successors and
assigns, as Purchaser (the "Purchaser").
PRELIMINARY STATEMENT
WHEREAS, the Purchaser and Countrywide have entered into that certain
Master Mortgage Loan Purchase Agreement dated as of August 30th, 2006 between
the Purchaser and Countrywide, as seller (the "Purchase Agreement"), pursuant to
which the Purchaser will purchase and Countrywide will sell from time to time,
certain Mortgage Loans (as hereinafter defined) identified in a Purchase
Confirmation;
WHEREAS, Countrywide is in the business of providing primary servicing of
mortgage loans and owns the right to service the Mortgage Loans listed on the
Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, Countrywide has agreed to service the Mortgage Loans for
the Purchaser on the terms and conditions set forth herein; and
WHEREAS, Countrywide and the Purchaser desire to prescribe the terms and
conditions regarding the management, servicing, and control of such Mortgage
Loans.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Mae or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Servicing Agreement, including all exhibits and
supplements hereto, and all amendments hereof.
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 Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of Texas are authorized or obligated by law or executive
order to be closed.
Cash Liquidation: Recovery of all cash proceeds by Countrywide with
respect to the termination of any defaulted Mortgage Loan other than a Mortgage
Loan which became an REO Property, including all PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds and other payments or recoveries whether made at one time or over a
period of time which Countrywide deems to be finally recoverable, in connection
with the sale or assignment of such Mortgage Loan, trustee's sale, foreclosure
sale or otherwise.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A of the Purchase Agreement.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 herein, each of which shall be an Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 3.06 herein, each of which shall be an Eligible
Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.01 of this Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxx Xxx.
Fidelity Bond: A fidelity bond to be maintained by Countrywide
pursuant to Section 3.12 of this Agreement.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxxx Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
GNMA: The Government National Mortgage Association or any
successor organization.
Government Insurance Proceeds: With respect to each Government
Mortgage Loan, payments made pursuant to a MIC or LGC.
Government Mortgage Loan: A Mortgage Loan insured by the FHA or
guaranteed by the VA.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
LGC: A loan guarantee certificate issued by the VA.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, proceeds of any REO Disposition or
otherwise, which represent late payments or collections of Monthly Payments due
but delinquent for a previous Due Period and not previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Government
Insurance Proceeds, Condemnation Proceeds and Other Insurance Proceeds, received
by Countrywide in connection with the liquidation of a defaulted Mortgage Loan
through trustee's sale, foreclosure sale or otherwise, other than amounts
received following the acquisition of an REO Property pursuant to Section 3.13
of this Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MIC: A mortgage insurance certificate issued by HUD.
Monthly Advance: The advances made or required to be made by
Countrywide on any Remittance Date pursuant to this Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and ZIP Code of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty flag and term, and (xxi) interest-only term, if
applicable. The information set forth in the Mortgage Loan Schedule relating to
the Mortgage Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect
to any LPMI Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage backed securities transaction.
Payment Adjustment Date: As to each Mortgage Loan, the date on which
an adjustment to the Monthly Payment on a Mortgage Note becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Prepayment Penalty: With respect to each Mortgage Loan, a prepayment
penalty, charge, premium or fee, if any, payable upon the Principal Prepayment
in full of such Mortgage Loan, as set forth in the related Mortgage Note or
Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the calendar
month preceding the month of distribution.
Purchase Confirmation: A letter agreement, substantially in the form
of an exhibit to the Purchase Agreement, executed by Countrywide and the
Purchaser in connection with the purchase and sale of each Mortgage Loan
Package, which sets forth the terms relating thereto including a description of
the related Mortgage Loans (including the Mortgage Loan Schedule), the purchase
price for such Mortgage Loans, the Closing Date and the Servicing Fee Rate.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 7.06 of this Agreement.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in the related
mortgage loan purchase agreement; (v) shall be the same type of Mortgage Loan
(i.e., a Convertible Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Pass-Through Transfer or an Agency Transfer
pursuant to Section 7.06.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 7.06
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate. On such date, the Mortgage Loans transferred shall cease to be
covered by this Agreement and Countrywide's servicing responsibilities shall
cease under this Agreement with respect to the related transferred Mortgage
Loans.
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of this Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of this Agreement.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by Countrywide of its
servicing obligations, including the cost of (i) the preservation, restoration
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of the
REO Property, (iv) with respect to Government Mortgage Loans, amounts advanced
to the Purchaser for which Countrywide may be entitled to receive reimbursement
from a government agency and (v) compliance with the obligations under this
Agreement including Section 3.09 hereof.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. Solely in the event Countrywide is terminated as servicer of the
Mortgage Loans, the Servicing Fee shall be prorated (based upon the number of
days of the related month Countrywide so acted as servicer relative to the total
number of days in that month) for each part thereof. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion of such Monthly Payment collected by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Servicing Officer: Any officer of Countrywide involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by Countrywide to
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
an exhibit attached to the Purchase Agreement executed by Countrywide and the
Purchaser prior to the applicable Closing Date confirming the terms of a
prospective purchase and sale of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Purchase Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser
of some or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to service each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the servicing of the Mortgage Loans for the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of Countrywide's organizational documents or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(d) Approved Servicer. Countrywide is an approved servicer for each
Agency in good standing. No event has occurred, including a change in insurance
coverage, which would make Countrywide unable to comply with Xxxxxx Xxx, Xxxxxxx
Mac eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the servicing of the Mortgage
Loans to the Purchaser or Countrywide's ability to perform its obligations under
this Agreement;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date; and
(g) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer.
Countrywide shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of this Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Countrywide may deem necessary or desirable and consistent with the terms of
this Agreement. In servicing and administering the Mortgage Loans, Countrywide
shall employ procedures in accordance with the customary and usual standards of
practice of prudent mortgage servicers. Notwithstanding anything to the contrary
contained herein, in servicing and administering Government Mortgage Loans,
Countrywide shall not take, or fail to take, any action that would result in the
denial of coverage under any LGC or MIC, as applicable. Without limiting the
generality of the foregoing, with respect to any Government Mortgage Loan,
Countrywide shall be permitted to deviate from the servicing practices set forth
herein if such deviation would be consistent with the servicing practices
employed in connection with any similar mortgage loan constituting a part of a
GNMA mortgage-backed security.
In accordance with the terms of the related mortgage loan purchase
agreement, Countrywide may waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in Countrywide's reasonable and
prudent determination such waiver, modification, postponement or indulgence is
not materially adverse to the Purchaser; provided, however, that Countrywide
shall not permit any modification with respect to any Mortgage Loan that would
decrease the Mortgage Interest Rate (other than by adjustments required by the
terms of the Mortgage Note), result in the denial of coverage under a PMI
Policy, LGC or MIC, reduce the outstanding principal amount (except for actual
payments of principal) forgive the payment of principal or interest, or extend
the final maturity date on such Mortgage Loan without the Purchaser's consent.
Countrywide may permit forbearance or allow for suspension of Monthly Payments
for up to one hundred and eighty (180) days if the Mortgagor is in default or
Countrywide determines in its reasonable discretion, that default is imminent
and if Countrywide determines that granting such forbearance or suspension is in
the best interest of the Purchaser. If any modification, forbearance or
suspension permitted hereunder allows the deferral of interest or principal
payments on any Mortgage Loan, Countrywide shall include in each remittance for
any month in which any such principal or interest payment has been deferred
(without giving effect to such modification, forbearance or suspension) an
amount equal to such month's principal and one (1) month's interest at the
Mortgage Loan Remittance Rate on the then unpaid principal balance of the
Mortgage Loan and shall be entitled to reimbursement for such advances only to
the same extent as for Monthly Advances made pursuant to Section 4.03 of this
Agreement. Without limiting the generality of the foregoing, Countrywide shall
continue, and is hereby authorized and empowered to execute and deliver on
behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by Countrywide, the Purchaser shall
furnish Countrywide with any powers of attorney and other documents necessary or
appropriate to enable Countrywide to carry out its servicing and administrative
duties under this Agreement.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, Countrywide shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) materially and adversely affect the status
of the REMIC as a REMIC or (ii) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860D of the Code) unless Countrywide has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not materially and adversely affect such REMIC
status or result in the imposition of any tax on the REMIC.
Section 3.02 Collection of Mortgage Loan Payments.
Countrywide shall make reasonable efforts, in accordance with the
customary and usual standards of practice of prudent mortgage servicers, to
collect all payments due under each Mortgage Loan to the extent such procedures
shall be consistent with this Agreement, the terms and provisions of any related
PMI Policy, MIC or LGC, and applicable law. Countrywide shall take special care
in ascertaining and estimating Escrow Payments in accordance with Accepted
Servicing Practices.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
(a) Foreclosure. Countrywide shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. Countrywide shall use reasonable efforts to realize upon defaulted
Mortgage Loans, in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that, in
any case in which Mortgaged Property shall have suffered damage, Countrywide
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to the
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by Countrywide through PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds or Liquidation Proceeds from the
related Mortgaged Property. Countrywide shall notify the Purchaser in writing of
the commencement of foreclosure proceedings. Such notice may be contained in the
reports prepared by Countrywide and delivered to the Purchaser pursuant to the
terms and conditions of this Agreement. Countrywide shall be responsible for all
costs and expenses incurred by it in any foreclosure proceedings; provided,
however, that it shall be entitled to reimbursement thereof from proceeds from
the related Mortgaged Property.
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one (1) or more
Custodial Accounts, in the form of time deposit or demand accounts and shall be
titled "[Countrywide] in trust for Barclays Bank PLC as Purchaser of Mortgage
Loans and various Mortgagors." Countrywide shall provide the Purchaser with
written evidence of the creation of such Custodial Account(s) within thirty (30)
days of the Initial Closing Date.
Countrywide shall deposit in the Custodial Account within two (2)
Business Days following receipt thereof, and retain therein, the following
payments and collections received or made by it subsequent to the Cut-off Date,
or received by it prior to the Cut-off Date but allocable to a period subsequent
thereto, other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date:
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(c) all proceeds from a Cash Liquidation;
(d) all PMI Proceeds, Government Insurance Proceeds and Other
Insurance Proceeds, including amounts required to be deposited pursuant to
Sections 3.08 and 3.10 of this Agreement, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(e) all Condemnation Proceeds affecting any Mortgaged Property which
are not released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(f) all Monthly Advances;
(g) all proceeds of any Mortgage Loan repurchased in accordance with
Section 3.03 or 3.04 of the Purchase Agreement, and any amount required to be
deposited by Countrywide in connection with any shortfall in principal amount of
the Qualified Substitute Mortgage Loans and the repurchased Mortgage Loans as
required pursuant to Section 3.03 of the Purchase Agreement;
(h) any amounts required to be deposited by Countrywide pursuant to
Section 3.10 of this Agreement in connection with the deductible clause in any
blanket hazard insurance policy (such deposit shall be made from Countrywide's
own funds, without reimbursement therefor);
(i) the Prepayment Interest Shortfall Amount, if any, for the month
of distribution (such deposit shall be made from Countrywide's own funds,
without reimbursement therefor up to a maximum amount per month equal to the
lesser of one half of (a) one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loans, or (b) the
aggregate Servicing Fee actually received for such month for the Mortgage
Loans); and
(j) any amounts required to be deposited by Countrywide in
connection with any REO Property pursuant to Section 3.13 of this Agreement.
The foregoing requirements for deposit in the Custodial Account are
exclusive. The Purchaser understands and agrees that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
Prepayment Penalties and assumption fees (to the extent permitted by Section
3.16 of this Agreement) need not be deposited by Countrywide in the Custodial
Account. Any interest paid by the depository institution on funds deposited in
the Custodial Account shall accrue to the benefit of Countrywide and Countrywide
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 3.05(d) of this Agreement.
Section 3.05 Permitted Withdrawals From the Custodial Account.
Countrywide may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Sections 4.01 and 4.03 of this Agreement;
(b) to reimburse itself for Monthly Advances (Countrywide's
reimbursement for Monthly Advances shall be limited to amounts received on the
related Mortgage Loan (or to amounts received on the Mortgage Loans as a whole
if the Monthly Advance is made due to a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Relief Act) which represent Late
Collections, net of the related Servicing Fee and LPMI Fee, if applicable.
Countrywide's right to reimbursement hereunder shall be prior to the rights of
the Purchaser, except that, where Countrywide is required to repurchase a
Mortgage Loan pursuant to Section 3.03 or 3.04 of the Purchase Agreement,
Countrywide's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loans. Notwithstanding the
foregoing, Countrywide may reimburse itself for Monthly Advances from any funds
in the Custodial Account if it has determined that such funds are nonrecoverable
advances or if all funds, with respect to the related Mortgage Loan, have
previously been remitted to the Purchaser);
(c) to reimburse itself for unreimbursed Servicing Advances and any
unpaid Servicing Fees (Countrywide's reimbursement for Servicing Advances and/or
Servicing Fees hereunder with respect to any Mortgage Loan shall be limited to
proceeds from Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, PMI
Proceeds, Government Insurance Proceeds and Other Insurance Proceeds; provided,
however, that Countrywide may reimburse itself for Servicing Advances and
Servicing Fees from any funds in the Custodial Account if all funds, with
respect to the related Mortgage Loan, have previously been remitted to the
Purchaser. Notwithstanding the foregoing, with respect to each Government
Mortgage Loan, Countrywide shall not be entitled to reimbursement of any
Servicing Advances that constitute losses and expenses for which an issuer of
GNMA securities would be responsible, pursuant to Chapter 4 of the GNMA Handbook
5500.2, if such Government Mortgage Loan had been included in a GNMA security);
(d) to pay to itself as servicing compensation (i) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Remittance Date), and (ii) the Servicing Fee and the
LPMI Fee, if applicable, from that portion of any payment or recovery of
interest on a particular Mortgage Loan;
(e) to pay to itself, with respect to each Mortgage Loan that has
been repurchased pursuant to Section 3.03 or 3.04 of the Purchase Agreement, all
amounts received but not distributed as of the date on which the related
Repurchase Price is determined;
(f) to reimburse itself for any amounts deposited in the Custodial
Account in error; and
(g) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one (1) or more Escrow Accounts in the form of time
deposit or demand accounts, which accounts shall be Eligible Accounts.
Countrywide shall provide the Purchaser with written evidence of the creation of
such Escrow Account(s) within thirty (30) days of the Initial Closing Date.
Countrywide shall deposit in the Escrow Account(s) within two (2)
Business Days following receipt thereof, and retain therein, (a) all Escrow
Payments collected on account of the Mortgage Loans, and (b) all Other Insurance
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property. Countrywide shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes in
accordance with Section 3.07 of this Agreement. Countrywide shall be entitled to
retain any interest paid by the depository institution on funds deposited in the
Escrow Account except interest on escrowed funds required by law to be paid to
the Mortgagor or the related Mortgage. Countrywide shall pay Mortgagor interest
on the escrowed funds at the rate required by law notwithstanding that the
Escrow Account is non-interest bearing or the interest paid by the depository
institution thereon is insufficient to pay the Mortgagor interest at the rate
required by law.
Section 3.07 Permitted Withdrawals From Escrow Account.
Countrywide may, from time to time, withdraw funds from the Escrow
Account(s) for the following purposes: (a) to effect timely payments of the
following items, if applicable, ground rents, taxes, assessments, water rates,
mortgage insurance premiums, fire and hazard insurance premiums, PMI Policy
premiums, if applicable, and comparable items constituting Escrow Payments for
the related Mortgage; (b) to reimburse Countrywide for any Servicing Advance
made by Countrywide with respect to a related Mortgage Loan; provided, however,
that such reimbursement shall only be made from amounts received on the related
Mortgage Loan that represent late payments or collections of Escrow Payments
thereunder; (c) to refund to the Mortgagor any funds as may be determined to be
overages; (d) for transfer to the Custodial Account in accordance with the terms
of this Agreement; (e) for application to restoration or repair of the Mortgaged
Property; (f) to pay to Countrywide, or to the Mortgagors to the extent required
by law, any interest paid on the funds deposited in the Escrow Account; (g) to
reimburse itself for any amounts deposited in the Escrow Account in error; or
(h) to clear and terminate the Escrow Account on the termination of this
Agreement.
Section 3.08 Transfer of Accounts.
Countrywide may transfer the Custodial Account or the Escrow Account
to a different depository institution from time to time provided that such
Custodial Account and Escrow Account shall at all times be Eligible Accounts.
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder.
With respect to each Mortgage Loan, Countrywide shall maintain
accurate records reflecting the status of (a) ground rents, taxes, assessments,
water rates and other charges that are or may become a lien upon the Mortgaged
Property; (b) primary mortgage insurance premiums; (c) with respect to Mortgage
Loans insured by the FHA, mortgage insurance premiums, and (d) fire and hazard
insurance premiums. Countrywide shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums, and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable using Escrow Payments
which shall have been estimated and accumulated by Countrywide in amounts
sufficient for such purposes. To the extent that the Mortgage does not provide
for Escrow Payments, Countrywide shall determine that any such payments are made
by the Mortgagor at the time they first become due. Countrywide assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills, irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments, and shall make
advances from its own funds to effect such payments.
Countrywide will maintain in full force and effect, a PMI Policy
conforming in all respects to the description set forth in Section 3.02(v) of
the Purchase Agreement, issued by an insurer described in that Section, with
respect to each Mortgage Loan for which such coverage is herein required. Such
coverage will be maintained until the LTV or the Updated LTV of the related
Mortgage Loan is reduced to 80% or less in the case of a Mortgage Loan having a
LTV at origination in excess of 80%. or Countrywide, as applicable, will not
cancel or refuse to renew any PMI Policy in effect on the Closing Date that is
required to be kept in force under this Agreement unless a replacement PMI
Policy is obtained from and maintained with an insurer that is approved by an
Agency. Countrywide shall not take any action that would result in non-coverage
under any applicable PMI Policy of any loss that, but for the actions of
Countrywide would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 3.16 herein, Countrywide shall promptly notify the insurer under the
related PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions that may be
required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless otherwise provided in the related Purchase Confirmation, no
Mortgage Loan has in effect as of the Closing Date any mortgage pool insurance
policy or other credit enhancement, except for any PMI Policy, MIC or LGC and
the insurance or guarantee relating thereto, as applicable (excluding such
exception, the "Credit Enhancement"), and Countrywide shall not be required to
take into consideration the existence of any such Credit Enhancement for the
purposes of performing its servicing obligations hereunder. If the Purchaser
shall at any time after the related Closing Date notify Countrywide in writing
of its desire to obtain any such Credit Enhancement, the Purchaser and
Countrywide shall thereafter negotiate in good faith for the procurement and
servicing of such Credit Enhancement.
Section 3.10 Maintenance of Hazard Insurance.
Countrywide shall cause to be maintained, for each Mortgage Loan,
fire and hazard insurance with extended coverage as is customary in the area
where the Mortgaged Property is located in an amount that is equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan or (b) the greater of (i) the unpaid principal balance of the Mortgage
Loan, and (ii) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, Countrywide shall cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Administration program (or any successor thereto) with
a generally acceptable insurance carrier and with coverage in an amount not less
than the lesser of (x) the unpaid principal balance of the Mortgage Loan; (y)
the maximum insurable value of the improvements securing such Mortgage Loan; or
(z) the maximum amount of insurance which is available under the National Flood
Insurance Reform Act of 1994. Countrywide shall also maintain on REO Property,
(1) fire and hazard insurance with extended coverage in an amount that is not
less than the maximum insurable value of the improvements that are a part of
such property; (2) liability insurance; and (3) to the extent required and
available under the National Flood Insurance Reform Act of 1994, flood insurance
in an amount as provided above. Countrywide shall deposit in the Custodial
Account all amounts collected under any such policies except (A) amounts to be
deposited in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or REO Property and (B) amounts to be released to the
Mortgagor in accordance with Countrywide's normal servicing procedures. The
Purchaser understands and agrees that no earthquake or other additional
insurance on property acquired in respect of the Mortgage Loan shall be
maintained by Countrywide or Mortgagor. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to Countrywide and shall provide
for at least thirty (30) days prior written notice to Countrywide of any
cancellation, reduction in the amount of coverage or material change in
coverage. Countrywide shall not interfere with the Mortgagor's freedom of choice
in selecting either the insurance carrier or agent; provided, however, that
Countrywide shall only accept insurance policies from insurance companies
acceptable to an Agency and licensed to do business in the state wherein the
property subject to the policy is located.
Section 3.11 [Reserved].
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.
Countrywide shall cause to be maintained a blanket Fidelity Bond and
an errors and omissions insurance policy with responsible companies, with broad
coverage of all officers, employees or other persons acting in any capacity with
regard to the Mortgage Loan who handle funds, money, documents or papers
relating to the Mortgage Loans. The Fidelity Bond and errors and omissions
insurance shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure Countrywide against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of its officers,
employees and agents. Such Fidelity Bond shall also protect and insure
Countrywide against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 shall diminish
or relieve Countrywide from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the corresponding amounts
required by an Agency for an approved seller/servicer. Upon the request of the
Purchaser, Countrywide shall provide to the Purchaser a certificate of insurance
which certifies coverage of such Fidelity Bond and errors and omissions
insurance policy under this Section 3.12. .
Section 3.13 Title, Management and Disposition of REO Property.
(a) Title. In the event that title to the Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be taken in the name of Countrywide for the benefit of
the Purchaser, or in the event the Purchaser is not authorized or permitted to
hold title to real property in the state where the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such state
by so holding title, the deed or certificate of sale shall be taken in the name
of such Person(s) as shall be consistent with an Opinion of Counsel obtained by
Countrywide from an attorney duly licensed to practice law in the state where
the REO Property is located. Any Person(s) holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
(b) Management. Countrywide shall either itself or through an agent
selected by Countrywide, manage, conserve, protect and operate each REO Property
in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account. Countrywide shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter or
more frequently as required by the circumstances. Countrywide shall make or
cause to be made a written report of each such inspection. Such reports shall be
retained in the Credit File and copies thereof shall be forwarded by Countrywide
to the Purchaser within five (5) days of the Purchaser's request therefor.
Countrywide shall attempt to sell the REO Property (and may temporarily rent the
same for a period not greater than one year except as otherwise provided below)
on such terms and conditions as Countrywide deems to be in the best interest of
the Purchaser. Countrywide shall deposit, or cause to be deposited, within two
(2) Business Days of following receipt receipt thereof, in the Custodial Account
all revenues received with respect to each REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of each REO Property, including the cost of maintaining any hazard insurance
pursuant to Section 3.10 hereof and the fees of any managing agent acting on
behalf of Countrywide. Notwithstanding anything contained in this Agreement to
the contrary, upon written notice to Countrywide, the Purchaser may elect to
assume the management and control of any REO Property; provided, however, that
prior to giving effect to such election, the Purchaser shall reimburse
Countrywide for all previously unreimbursed or unpaid Monthly Advances,
Servicing Advances and Servicing Fees related to such REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held,
Countrywide shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code.
(c) Disposition. Subject to the following paragraph, Countrywide
shall use best efforts to dispose of each REO Property as soon as possible and
shall sell each REO Property no later than one (1) year after title to such REO
Property has been obtained, unless Countrywide determines, and gives an
appropriate notice to the Purchaser, that a longer period is necessary for the
orderly disposition of any REO Property. If a period longer than one (1) year is
necessary to sell any REO Property, Countrywide shall, if requested by the
Purchaser, report monthly to the Purchaser as to the progress being made in
selling such REO Property. Countrywide shall also maintain, on each REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the National Flood Insurance Act of 1968, as amended, flood
insurance in the amount required in Section3.10 hereof.
Each REO Disposition shall be carried out by Countrywide at such
price and upon such terms and conditions as Countrywide deems to be in a manner
that maximizes the net present value of the recovery to the Purchaser. If, as of
the date title to any REO Property was acquired by Countrywide there were
outstanding unreimbursed Servicing Advances, Monthly Advances or Servicing Fees
with respect to the REO Property or the related Mortgage Loan, Countrywide upon
an REO Disposition of such REO Property, shall be entitled to reimbursement for
any related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be promptly deposited in the Custodial Account and distributed to the
Purchaser in accordance with Section 4.01 of this Agreement.
Section 3.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, Countrywide
shall adjust the Mortgage Interest Rate on the related Interest Adjustment Date
and shall adjust the Monthly Payment on the related Payment Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. If, pursuant to the terms of the Mortgage Note, another index is
selected for determining the Mortgage Interest Rate because the original index
is no longer available, the same index will be used with respect to each
Mortgage Note which requires a new index to be selected, provided that such
selection does not conflict with the terms of the related Mortgage Note.
Countrywide shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments.
Countrywide shall promptly, upon written request therefor, deliver to the
Purchaser such notifications and any additional applicable data regarding such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by Countrywide or the Purchaser that Countrywide has failed
to adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms of
the related Mortgage Note and Mortgage, Countrywide shall immediately deposit in
the Custodial Account, from its own funds, the amount of any interest loss
caused the Purchaser thereby without reimbursement therefor.
Section 3.15 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, Countrywide shall
execute and deliver to the Mortgagor any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the maturity date and final balloon payment.
Section 3.16 Assumption Agreements.
Countrywide shall, to the extent it has knowledge of any conveyance
or prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that
Countrywide shall not exercise any such right if prohibited from doing so by law
or the terms of the Mortgage Note or if the exercise of such right would impair
or threaten to impair any recovery under the related PMI Policy, if any. If
Countrywide reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, Countrywide shall enter into an assumption agreement
with the Person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 3.16,
the Purchaser authorizes Countrywide, with the prior written consent of the
primary mortgage insurer, if any, to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
Countrywide shall follow the underwriting practices and procedures employed by
Countrywide for mortgage loans originated by Countrywide for its own account in
effect at the time such assumption or substitution is made. With respect to an
assumption or substitution of liability, the Mortgage Interest Rate borne by the
related Mortgage Note, the term of the Mortgage Loan and the outstanding
principal amount of the Mortgage Loan shall not be changed. Countrywide shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser or its designee the
original of any such substitution of liability or assumption agreement, which
document shall be added to the related Collateral File and shall, for all
purposes, be considered a part of such Collateral File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding anything to the contrary contained herein,
Countrywide shall not be deemed to be in default, breach or any other violation
of its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that Countrywide may be restricted by law
from preventing, for any reason whatsoever. For purposes of this Section 3.16,
the term "assumption" is deemed to also include a sale of the Mortgaged Property
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section 3.17 Satisfaction of Mortgages and Release of Collateral
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
Countrywide of a notification that payment in full will be escrowed in a manner
customary for such purposes, Countrywide shall immediately notify the Purchaser
after the Monthly Remittance Advice (as defined in Section 4.02) has been
provided in accordance with Section 4.02 and Countrywide may request the release
of any Mortgage Loan documents from the Purchaser in accordance with Section
3.17 hereof. Such notice shall include a statement to the effect that all
amounts received or to be received in connection with such payment, which are
required to be deposited in the Custodial Account pursuant to Section 3.04 of
this Agreement, have been or will be so deposited and shall request delivery to
it of the portion of the Collateral File held by the Purchaser. Upon receipt of
such notice and request, the Purchaser shall within five (5) Business Days
release or cause to be released to Countrywide the related Collateral Documents
and Countrywide shall prepare and process any satisfaction or release. In the
event that the Purchaser fails to release or cause to be released to Countrywide
the related Collateral Documents within five (5) Business Days of Countrywide's
request therefor, the Purchaser shall be liable to Countrywide for any
additional expenses or costs, including, but not limited to, outsourcing fees
and penalties, incurred by Countrywide resulting from such failure. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
With respect to a Mortgage Loan paid in full as set forth in the
above paragraph, if the Mortgage has been recorded in the name of MERS or its
designee, Countrywide shall take all necessary action to effect the release of
the Mortgage Loan on the records of MERS.
In the event Countrywide satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should it otherwise prejudice any right the Purchaser may have under
the mortgage instruments, Countrywide, upon written demand of the Purchaser,
shall promptly remit to the Purchaser the then unpaid principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. Countrywide
shall maintain the Fidelity Bond and errors and omissions insurance policy as
provided for in Section 3.12 insuring Countrywide against any loss it may
sustain with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From time to time and as appropriate for the service or foreclosure
of a Mortgage Loan, including for the purpose of collection under any PMI
Policy, the Purchaser shall, within five (5) Business Days of Countrywide's
request and delivery to the Purchaser, or the Purchaser's designee, of a
servicing receipt signed by a Servicing Officer, release or cause to be released
to Countrywide the portion of the Collateral File held by the Purchaser or its
designee. Pursuant to the servicing receipt, Countrywide shall be obligated to
return to the Purchaser the related Collateral File when Countrywide no longer
needs such file, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or the Collateral File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially. In
the event that the Purchaser fails to release or cause to be released to
Countrywide the portion of the Collateral File held by the Purchaser or its
designee within five (5) Business Days of Countrywide's request therefor, the
Purchaser shall be liable to Countrywide for any additional expenses or costs,
including, but not limited to, outsourcing fees and penalties, incurred by
Countrywide resulting from such failure. Upon receipt of notice from Countrywide
stating that such Mortgage Loan was liquidated, the Purchaser shall release
Countrywide from its obligations under the related servicing receipt.
Section 3.18 Servicing Compensation.
As compensation for its services hereunder, Countrywide shall be
entitled to withdraw from the Custodial Account, or to retain from interest
payments on the Mortgage Loans, the amounts provided for as Servicing Fees.
Additional servicing compensation in the form of assumption fees (as provided in
Section 3.16 of this Agreement), late payment charges, prepayment penalties or
otherwise shall be retained by Countrywide e to the extent not required to be
deposited in the Custodial Account. Countrywide shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 3.19 Restoration of Mortgaged Property
Countrywide need not obtain the approval of the Purchaser prior to
releasing any Other Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices and the terms of this Agreement. At a minimum,
Countrywide shall comply with the following conditions in connection with any
such release of Other Insurance Proceeds.
(a) Countrywide shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with respect
thereto;
(b) Countrywide shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics'and materialmen's liens; and
(c) Pending repairs and restoration, Countrywide shall place Other
Insurance Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, Countrywide
is hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With respect to each Mortgage Loan, Countrywide and the Purchaser
shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and
as applicable, and all applicable regulations promulgated thereunder, and shall
provide all notices required thereunder.
ARTICLE IV.
PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions.
On each Remittance Date, Countrywide shall distribute to the
Purchaser (a) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 3.05 hereof; plus (b)
all Monthly Advances, if any, that Countrywide is obligated to distribute
pursuant to Section 4.03 of this Agreement; minus (c) any amounts attributable
to Principal Prepayments received after the related Principal Prepayment Period;
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the preceding Determination Date. It is
understood that, by operation of Section 3.04 hereof, the remittance on the
first Remittance Date is to include principal collected after the Cut-off Date
through the preceding Determination Date plus interest, adjusted to the Mortgage
Loan Remittance Rate, collected through such Determination Date exclusive of any
portion thereof allocable to the period prior to the Cut-off Date, with the
adjustments specified in (b), (c) and (d) above.
Section 4.02 Periodic Reports to the Purchaser.
(a) Monthly Reports. Not later than each Remittance Date,
Countrywide shall furnish to the Purchaser via an electronic medium mutually
acceptable to the parties, a monthly report in a form reasonably acceptable to
the parties ("a Monthly Remittance Advice"), which report shall include with
respect to each Mortgage Loan the following loan-level information: (i) the
scheduled balance as of the last day of the related Due Period, (ii) all
Principal Prepayments applied to the Mortgagor's account during the related
Principal Prepayment Period, and (iii) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) Miscellaneous Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed-in-lieu of foreclosure, Countrywide shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property, which report may be
included with any other reports prepared by Countrywide and delivered to the
Purchaser pursuant to the terms and conditions of this Agreement. With respect
to any REO Property, and upon the request of the Purchaser, Countrywide shall
furnish to the Purchaser a statement describing Countrywide's efforts during the
previous month in connection with the sale of such REO Property, including any
rental of such REO Property incidental to the sale thereof and an operating
statement. Following the foreclosure sale or abandonment of any Mortgaged
Property, Countrywide shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code or any successor provision thereof.
Countrywide shall also provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time. The
Purchaser agrees to pay for all reasonable out-of-pocket expenses incurred by
Countrywide in connection with complying with any request made by the Purchaser
hereunder if such information is not customarily provided by Countrywide in the
ordinary course of servicing mortgage loans similar to the Mortgage Loans.
Section 4.03 Monthly Advances by Countrywide.
Not later than the close of business on the Determination Date
preceding each Remittance Date, Countrywide shall deposit in the Custodial
Account an amount equal to all payments not previously advanced by Countrywide,
whether or not deferred pursuant to Section 4.01 of this Agreement, of principal
(due after the Cut-off Date) and interest not allocable to the period prior to
the Cut-off Date, adjusted to the Mortgage Loan Remittance Rate, which were due
on a Mortgage Loan and delinquent as of the close of business on the Business
Day prior to the related Determination Date. Notwithstanding anything to the
contrary herein, Countrywide may use amounts on deposit in the Custodial Account
for future distribution to the Purchaser to satisfy its obligation, if any, to
deposit delinquent amounts pursuant to the preceding sentence. To the extent
Countrywide uses any funds being held for future distribution to the Purchaser
to satisfy its obligations under this Section 4.03 hereof, Countrywide shall
deposit in the Custodial Account an amount equal to such used funds no later
than the Determination Date prior to the following Remittance Date to the extent
that funds in the Custodial Account on such Remittance Date are less than the
amounts to be remitted to the Purchaser pursuant to Section 4.01 of this
Agreement.
Countrywide's obligation to make such advances as to any Mortgage
Loan will continue through the earliest of: (a) the last Monthly Payment due
prior to the payment in full of the Mortgage Loan; (b) the Remittance Date prior
to the Remittance Date for the distribution of any Liquidation Proceeds, Other
Insurance Proceeds or Condemnation Proceeds which, in the case of Other
Insurance Proceeds and Condemnation Proceeds, satisfy in full the indebtedness
of such Mortgage Loan; or (c) the Remittance Date prior to the date the Mortgage
Loan is converted to REO Property; provided, however, with respect to any
Government Mortgage Loan that is converted to REO Property, Countrywide's
obligation to make such advances will continue in accordance with the applicable
governmental agency's guidelines. In no event shall Countrywide be obligated to
make an advance under this Section 4.03 of this Agreement if at the time of such
advance it reasonably determines that such advance will be unrecoverable.
Section 4.04 Annual Statement as to Compliance.
Countrywide shall deliver to the Purchaser on or before March 5th of
each calendar year, beginning in the year following the Closing Date, signed by
a senior officer of Countrywide stating that (a) a review of the activities of
Countrywide during the preceding fiscal year and of performance under this
Agreement have been made under such officer's supervision, (b) based on such
review, Countrywide has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any obligation, specifying each such default known to such officer and the
nature and status thereof and the actions being taken by Countrywide to cure
such default, and (iii) all reports and information provided to Purchaser by
Countrywide, pursuant to Countrywide's reporting requirements under the
Agreement, are accurate and complete in all material respects. Copies of such
statement may be provided by Purchaser to any Person identified as a prospective
purchaser of the Mortgage Loans.
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report.
Countrywide shall, on or before March 5th of each year, beginning in
the year following the Closing Date, cause, at its sole cost and expense, a firm
of independent public accountants, which is a member of the American Institute
of Certified Public Accountants, to furnish a statement to the Purchaser to the
effect that such firm has examined certain documents and records and performed
certain other procedures relating to the servicing of the Mortgage Loans during
the immediately preceding fiscal year of Countrywide and that such firm is of
the opinion that, on the basis of such examination conducted substantially in
accordance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance therewith, except for such
exceptions as shall be set forth in such statement.
Section 4.06 Purchaser's Access to Countrywide's Records.
The Purchaser shall have access upon reasonable notice to
Countrywide, during regular business hours or at such other times as might be
reasonable under applicable circumstances, to any and all of the books and
records of Countrywide that relate to the performance or observance by
Countrywide of the terms, covenants or conditions of this Agreement. Further,
Countrywide hereby authorizes the Purchaser, in connection with a sale of the
Mortgage Loans, to make available to prospective purchasers a Consolidated
Statement of Operations of Countrywide, or its parent company, prepared by or at
the request of Countrywide for the most recently completed three (3) fiscal
years for which such a statement is available as well as a Consolidated
Statement of Condition at the end of the last two (2) fiscal years covered by
such Consolidated Statement of Operations. Se also agrees to make available to
any prospective purchaser, upon reasonable notice and during normal business
hours, a knowledgeable financial or accounting officer for the purpose of
answering questions respecting Countrywide's ability to perform under this
Agreement. The Purchaser agrees to reimburse Countrywide for any out-of-pocket
costs incurred by Countrywide in connection with its obligations under this
Section 4.06.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and expenses and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may sustain
in any way related to (a) a material breach of any of the representations or
warranties made by Countrywide in Section 2.01 of this Agreement, or (b) the
failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it 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
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, (b) the failure of the Purchaser to perform its obligations
hereunder, including subsections (i) and (ii) in Section 5.03 of this Agreement,
or (c) failure of the Purchaser to comply with Section 3.20 of this Agreement.
The indemnification rights set forth in this Section 5.01 shall
survive the termination of this Agreement or the resignation or removal of
Countrywide for any reason.
Section 5.02 Merger or Consolidation of Countrywide.
Countrywide shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans, and to perform
its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the servicing of
mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.03 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents of
Countrywide shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide 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. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event(s) of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 6.01(a)
of this Agreement, the Purchaser shall not record or cause to be recorded an
Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countrywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01
of this Agreement.
Section 5.04 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP. In the event Countrywide assigns the servicing
rights to Servicing LP as contemplated in this Section 5.04, the Servicing LP
shall assume all obligations of Countrywide, as servicer, under this Agreement
from and after the date of such assignment.
Section 5.05 Subservicing.
Countrywide may enter into subservicing agreements or arrangements
for the servicing and administration of any or all of the Mortgage Loans.
Countrywide will remain obligated and primarily liable to the Purchaser for the
servicing of the Mortgage Loans in accordance with the provisions of this
Agreement, without diminution of such obligation or liability by virtue of the
subservicing agreements or arrangements or by virtue of indemnification from the
subservicer, and to the same extent and under the same terms and conditions as
if Countrywide alone were servicing the Mortgage Loans. Countrywide will be
solely liable for all fees owed by it to any subservicer.
ARTICLE VI.
TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default.
(a) Each of the following shall be an Event of Default by
Countrywide if it shall occur and, if applicable, be continuing for the period
of time set forth therein:
(i) any failure by Countrywide to remit to the Purchaser any payment
required to be made under the terms of this Agreement which such failure
continues unremedied for a period of three (3) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
be given to Countrywide by the Purchaser; or
(ii) any failure on the part of Countrywide to duly observe or
perform in any material respect any of the covenants or agreements on the part
of Countrywide set forth in this Agreement which continues unremedied for a
period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to Countrywide
by the Purchaser (except that such number of days shall be fifteen in the case
of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement; a failure on the part of Countrywide to deliver
the statement or report, as applicable, required to be delivered under Section
4.04 or 4.05 of this Agreement, which continues unremedied for nine calendar
days after receipt by Countrywide of written notice of such failure from the
Purchaser (which failure shall continue no later than March 15th of each year
("Due Date") with respect to Section 4.04 or 4.05 of this Agreement; provided,
however, Countrywide shall have received such written notice of such failure at
least 5 Business Days prior to such Due Date); or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against Countrywide and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty (60) days; or
(iv) Countrywide shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
Countrywide or of or relating to all or substantially all of its property; or
(v) Countrywide shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vi) Countrywide ceases to meet the servicer eligibility
qualifications of a Xxxxxx Xxx and Xxxxxxx Mac; or
(vii) Countrywide fails to maintain its license to do business or
service residential mortgage loans in any jurisdiction where the Mortgaged
Properties are located if such license is required, which failure continues
unremedied for a period of sixty-five (65) days, or such other additional time
as mutually agreed upon by the Purchaser and Countrywide; provided, however,
that it is understood by the Purchaser that the failure to cure within the
timeframe provided for herein (or such additional time as mutually agreed upon
by the Purchaser and the Servicer) shall constitute an Event of Default solely
for the affected Mortgage Loan.
In case one or more Events of Default by Countrywide shall occur and
shall not have been remedied, the Purchaser, by notice in writing to Countrywide
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, terminate without
compensation (however, Countrywide shall be reimbursed for all outstanding and
unreimbursed Servicing Advances and Monthly Advances), all the rights and
obligations of Countrywide under this Agreement, the Purchase Agreement and in
and to the Mortgage Loans and the proceeds thereof. Upon the receipt by
Countrywide of such written notice, all authority and power of Countrywide under
this Agreement and the Purchase Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Purchaser. Upon written
request from the Purchaser, Countrywide shall prepare, execute and deliver, any
and all documents and other instruments and 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, at Countrywide's sole
expense. Countrywide agrees to cooperate with the Purchaser in effecting the
termination of Countrywide's responsibilities and rights hereunder, including
without limitation, the transfer to the Purchaser, for administration by it, of
all cash amounts which shall at the time be credited by Countrywide to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
(b) Waiver of Event of Default. The Purchaser may waive any default
by Countrywide in the performance of Countrywide's obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Events 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 thereto except
to the extent expressly so waived.
Section 6.02 Termination by Other Means.
The respective obligations and responsibilities of Countrywide shall
terminate with respect to any Mortgage Loan Package upon the first to occur of:
(a) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property in such Mortgage Loan Package and the remittance of all funds due
hereunder; (b) by mutual consent of Countrywide and the Purchaser in writing;
(c) the purchase by Countrywide of all outstanding Mortgage Loans and REO
Property in a Mortgage Loan Package at a price mutually agreed upon by the
parties; or (d) the Pass-Through Transfer of the last Mortgage Loan in such
Mortgage Loan Package.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
With a copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to: Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
E-Mail: Xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 7.02 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 7.03 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a). the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b). accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c). references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d). reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e). the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f). the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g). reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 7.04 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.05 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer or
Pass-Through Transfer and may assign this Agreement; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement in
the form of an assignment, assumption and recognition agreement ("AAR")
reasonably acceptable to the Purchaser and Countrywide and an original
counterpart of the AAR shall have been executed by the Purchaser and the
transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package. Any Person or trust to which Mortgage Loans may be transferred
pursuant to this Section 7.06(a) or Section 7.06(b) hereunder shall constitute a
single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 7.06(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide, as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 7.06 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 7.06. In
connection therewith Countrywide shall:
(i) negotiate in good faith an AAR required to effectuate the
Pass-Through Transfer, provided such AAR creates no greater obligation or cost
on the part of Countrywide than otherwise set forth in this Agreement, and
provided further that Countrywide shall be entitled to a servicing fee under
that agreement at a rate per annum no less than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Countrywide as are
reasonably believed necessary by the trustee, any rating agency or
the Purchaser, as the case may be, in connection with such
Pass-Through Transfer. The Purchaser shall pay all third party costs
associated with the preparation of the information described in
clause (ii)(A) above and the delivery of any opinions, letters or
certificates described in this clause (ii)(B). Countrywide shall not
be required to execute any AAR unless a draft of such AAR is
provided to Countrywide at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for
Countrywide and its counsel to review and comment on the agreement.
(c) In connection with any Pass-Through Transfer, Countrywide shall
not be required to "bring down" any of the representations and warranties in
this Agreement (i.e., the representations and warranties only speak as of the
applicable date set forth in the Purchase Agreement), or, except as provided in
the following sentence, to make any other representations or warranties
whatsoever. Upon request, Countrywide will bring down the representations and
warranties in Section 2.01 of this Agreement to a date no later than the related
Reconstitution Date.
(d) Countrywide shall: (i) provide to the Purchaser any and all
necessary information and appropriate verification of information which may be
reasonably available to Countrywide, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; and (ii) execute an indemnity agreement agreed upon by the Purchaser
and Countrywide such as an Indemnification and Contribution Agreement in a form
to be mutually agreed upon by the parties. Moreover, Countrywide agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section 7.07 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Purchase Agreement and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of this Agreement and the Purchase
Agreement, the terms of this Agreement shall control.
Section 7.08 Governing Law.
This Agreement shall be deemed in effect when fully executed
counterpart and shall be deemed to have been made in the State of New York. The
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall be
deemed in accordance with the substantive laws of the State of New York (without
regard to conflict of laws principles), except to the extent preempted by
applicable federal Law.
Section 7.09 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 7.10 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide, the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 7.06 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 7.11 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 7.12 Entire Agreement.
This Agreement and Purchase Confirmation constitute the entire
understanding between the Countrywide and the Purchaser with respect to each
Mortgage Loan Package and supersede all prior or contemporaneous oral or written
communications regarding same. Countrywide and the Purchaser understand and
agree that no employee, agent or other representative of Countrywide or the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Purchase Confirmation. Neither
this Agreement nor the related Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 7.13 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 7.14 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 7.15 Waiver of Trial by Jury.
COUNTRYWIDE AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.16 Consent to Service of Process.
EACH OF THE PURCHASER AND COUNTRYWIDE IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT;
(II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES
THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV)
CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED
MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS INC.,
Countrywide
By:______________________________________
Name: Xxxxxx Xxxxx
Title:
BARCLAYS BANK PLC,
the Purchaser
By:______________________________________
Name
Title:
EXHIBIT N-1
XXXXX FARGO ASSIGNMENT AGREEMENT
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated March 29, 2007
("Agreement"), among Barclays Bank PLC ( the "Assignor"), BCAP LLC ("Assignee"),
Xxxxx Fargo Bank, National Association, as servicer (in such capacity, the
"Servicer"), and as seller (in such capacity, the "Company") and Deutsche Bank
National Trust Company , as trustee (the "Trustee"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, the Seller's Warranties and
Sale Agreement-WFHM 2007-PA07 (the "Sale and Servicing Agreement"), dated as of
March 1, 2007, between the Assignor, as purchaser (the "Purchaser") and the
Company, as seller/servicer, solely insofar as the Sale and Servicing Agreement
relate to the Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Sale and Servicing Agreement as modified
by this Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreement that are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign its rights
under the Sale and Servicing Agreement (solely to the extent set forth herein)
and this Agreement to BCAP LLC Trust 2007-AA2 (the "Trust") created pursuant to
a Trust Agreement, dated as of March 1, 2007 (the "Trust Agreement"), among the
Assignee, Xxxxx Fargo Bank, National Association, as custodian, and Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Trust Agreement, the "Trustee"). Each of
the Company, the Servicer and the Trustee on behalf of the Trust hereby
acknowledges and agrees that from and after the date hereof (i) the Trust will
be the owner of the Mortgage Loans, (ii) the Company and the Servicer shall look
solely to the Trust for performance of any obligations of the Assignor insofar
as they relate to the Mortgage Loans, (iii) the Trust shall have and assume all
the rights, remedies and obligations available to the Assignor, insofar as they
relate to the Mortgage Loans, under the Sale and Servicing Agreement, including,
without limitation, the enforcement of the document delivery requirements set
forth in Article 2 of the Sale and Servicing Agreement, and shall be entitled to
enforce all of the obligations of the Company thereunder insofar as they relate
to the Mortgage Loans, (iv) all references to the Purchaser under the Sale and
Servicing Agreement insofar as they relate to the Mortgage Loans, shall be
deemed to refer to the Trust and (v) the Mortgage Loans will be part of a "real
estate mortgage investment conduit" within the meaning of Section 860D of the
Code (a "REMIC"), and the Servicer shall service the Mortgage Loans and any real
property acquired upon default thereof (including, without limitation, making or
permitting any modification, waiver or amendment of any term of any Mortgage
Loan) in accordance with the Sale and Servicing Agreement but in no event in a
manner that would (A) cause the REMIC to fail to qualify as a REMIC or (B)
result in the imposition of a tax upon the REMIC, and all custodial accounts and
escrow accounts maintained under the Sale and Servicing Agreement with respect
to the Mortgage Loans shall be Eligible Accounts as set forth in this Agreement.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee, the Trustee and the Trust as of the date hereof
that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreement to which it is a party.
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreement, or which, either
in any one instance or in the aggregate, would result in any material adverse
change in its ability to perform its obligations under this Agreement or the
Sale and Servicing Agreement, and it is solvent.
Amendments to Sale and Servicing Agreements for the Securitization
4. Solely with respect to the Mortgage Loans, the following
amendments are hereby made to the Sale and Servicing Agreement:
(a) the first paragraph in Section 5.02 is deleted and replaced in
entirety with the following:
"Not later than the 10th Business Day of each month, the Company
shall furnish to the Trustee a monthly remittance advice, with a trial balance
report attached thereto, as to the remittance period ending on the last day of
the preceding month."
(b) in Section 6.04, the text "the Purchaser and any Depositor" and
"the Purchaser and such Depositor" are deleted and replaced with "the
Depositor".
(c) in Section 6.06, the text "the Purchaser and any Depositor" and
"the Purchaser and such Depositor" are deleted and replaced with "the
Depositor".
Remedies for Breach of Representations and Warranties
5. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Section 3.03 of the Sale
and Servicing Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
8. For all purposes of the Company's obligations in connection with
Regulation AB compliance and filings of the Purchaser, pursuant to the Sale and
Servicing Agreement (including indemnifications in favor of the Purchaser under
Section 9.01), the term "Purchaser" shall include the Trust and the Trustee.
9. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which the Assignor, Assignee, the Servicer or Company may be merged
or consolidated shall, without the requirement for any further writing, be
deemed Assignor, Assignee, the Servicer or Company, respectively, hereunder.
10. Each of this Agreement and the Sale and Servicing Agreement
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreement (to the extent assigned hereunder) by the Assignor
to Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreement.
11. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
12. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
13. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreement.
14. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of Barclays:
Barclays Bank PLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
In the case of the Depositor:
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
with a copy to:
Barclays Bank PLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
In the case of the Trustee
for the purposes of notices and delivery of reports:
Deutsche Bank Trust Company Americas
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Trust Administration - BC0702
for the purposes of remittance:
Deutsche Bank Trust Company Americas
ABA #: 021 001 033
Acct. #: 01419663
Acct. Name: NYLTD Funds Control-Stars West
Ref: Trust Administration - BCAP 2007-AA2
In the case of the Company and Servicer:
Xxxxx Fargo Bank, National Association
1 Home Campus
MAC X0000-000
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Copy to: General Counsel, 1 Home Campus,
MAC X0000-000, Xxx Xxxxxx, Xxxx 00000-0000
Trustee Capacity. It is expressly understood and agreed by the
parties hereto that insofar as this Agreement is executed by the Trustee (i) it
is acknowledged and agreed to by Deutsche Bank National Trust Company in the
exercise of the powers and authority conferred and vested in it as Trustee under
the Trust Agreement, (ii) each of the representations, undertakings and
agreements herein made is intended not as personal representations of the
Trustee but is made and intended for the purpose of binding only the Trust, and
(iii) Deutsche Bank National Trust Company in its individual capacity shall not
be personally liable under any circumstance for the payment of any indebtedness
or expenses or be personally liable for the breach of failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as seller
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as servicer
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
BARCLAYS BANK PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Its: Managing Director
BCAP LLC
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Its: Managing Director
ACKNOWLEDGED AND AGREED:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its individual capacity
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Authorized Signer
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Trustee on the Closing Date)
EXHIBIT N-2
COUNTRYWIDE ASSIGNMENT AGREEMENT
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated March 29, 2007 (the
"Agreement"), among Barclays Bank PLC ("Barclays"), Xxxxxx Funding LLC (together
with Barclays, the "Assignors"), BCAP LLC ("Assignee"), Countrywide Home Loans
Servicing LP (the "Servicer"), Countrywide Home Loans, Inc. (the "Company") and
Deutsche Bank National Trust Company, as trustee (the "Trustee"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignors hereby conveys, sell, grant, transfer and assign to
the Assignee all of the rights, title, interest and obligations of the
Assignors, as purchasers, in, to and under (a) those certain Mortgage Loans
listed on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit
A (the "Mortgage Loans") and (b) except as described below, that certain Master
Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of August 30,
2006, between Barclays, as purchaser (the "Purchaser"), and the Company, as
seller, and the Servicing Agreement (the "Servicing Agreement"), dated as of
August 30, 2006, between the Purchaser, and the Company, as servicer, each as
amended by Amendment Reg AB to the Master Loan Purchase and Servicing Agreement,
dated as of August 30, 2006 (together with the Sale Agreement and Servicing
Agreement, the "Sale and Servicing Agreements"), among the Purchaser and the
Company, solely insofar as the Sale and Servicing Agreements relate to the
Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignors specifically reserve and do not assign to the Assignee
hereunder any and all right, title and interest in, to and under and any
obligations of the Assignors with respect to any mortgage loans subject to the
Sale and Servicing Agreements that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign its rights
under the Sale and Servicing Agreements (solely to the extent set forth herein)
and this Agreement to BCAP LLC Trust 2007-AA2 (the "Trust") created pursuant to
a Trust Agreement, dated as of March 1, 2007 (the "Trust Agreement"), among the
Assignee, Xxxxx Fargo Bank, National Association, as custodian, and Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Trust Agreement, the "Trustee"). Each of
the Company, the Servicer and the Trustee on behalf of the Trust hereby
acknowledges and agrees that from and after the date hereof (i) the Trust will
be the owner of the Mortgage Loans, (ii) the Company and the Servicer shall look
solely to the Trust for performance of any obligations of the Assignors insofar
as they relate to the Mortgage Loans, (iii) the Trust shall have and assume all
the rights, remedies and obligations available to the Assignors, insofar as they
relate to the Mortgage Loans, under the Sale and Servicing Agreements,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 2 of the Sale Agreement, and shall be entitled
to enforce all of the obligations of the Company thereunder insofar as they
relate to the Mortgage Loans, (iv) all references to the Purchaser under the
Sale and Servicing Agreements insofar as they relate to the Mortgage Loans,
shall be deemed to refer to the Trust and (v) the Mortgage Loans will be part of
a "real estate mortgage investment conduit" within the meaning of Section 860D
of the Code (a "REMIC"), and the Servicer shall service the Mortgage Loans and
any real property acquired upon default thereof (including, without limitation,
making or permitting any modification, waiver or amendment of any term of any
Mortgage Loan) in accordance with the Sale and Servicing Agreement but in no
event in a manner that would (A) cause the REMIC to fail to qualify as a REMIC
or (B) result in the imposition of a tax upon the REMIC, and all custodial
accounts and escrow accounts maintained under the Servicing Agreement with
respect to the Mortgage Loans shall be Eligible Accounts as set forth in this
Agreement.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignors, the Assignee and the Trust as of the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party.
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignors and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Remedies for Breach of Representations and Warranties
4. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignors, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Subsection 3.03 of the
Sale Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Amendments to Sale and Servicing Agreements for the Securitization
5. Solely with respect to the Mortgage Loans, the following
amendments are hereby made to the Servicing Agreement:
(a) The following definitions set forth in the Servicing Agreement
are amended and restated in their entirety as follows:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of Maryland, the State of Minnesota or the State of Texas
are authorized or obligated by law or executive order to be closed.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account at an
institution acceptable to each Rating Agency. Each Eligible Account shall be a
separate account.
Eligible Institution: A federal or state-chartered depository institution or
trust company the commercial paper, short-term debt obligations, or other
short-term deposits of which are rated "A-1+" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days (or
at least "A-2" by Standard & Poor's if the amounts on deposit are to be held in
the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Purchaser by written notice
to the Servicers).
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Servicer, the Company, or any of their respective
affiliates:
(1) direct obligations of, or obligations fully guaranteed
as to timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States;
(2) (A) such depository institution or trust company or its
ultimate parent has a short-term uninsured debt rating in one of the
two highest available rating categories of the Rating Agency and (B)
any other demand or time deposit or deposit which is fully insured
by the FDIC;
(3) repurchase obligations with respect to any security
described in clause (1) above and entered into with a depository
institution or trust company (acting as principal) rated A or higher
by the Rating Agency;
(4) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America, the District of Columbia or any state
thereof and that are rated by the Rating Agency that rates such
securities in its highest long-term unsecured rating categories at
the time of such investment or contractual commitment providing for
such investment;
(5) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) that is rated
by the Rating Agency that rates such securities in its highest
short-term unsecured debt rating available at the time of such
investment;
(6) units of money market funds, including money market
funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the
Investment Company Act of 1940 including funds managed or advised by
the Servicer, the Company having the highest applicable rating from
the Rating Agency; and
(7) if previously confirmed in writing to the Assignee or
its designee, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to
the Rating Agency in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial
ratings of the senior certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Rating Agency: Any nationally recognized statistical rating agency rating the
securities issued in the applicable Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted as
part of a Pass-Through Transfer pursuant to Section 7.06 hereof. The
Reconstitution Date shall be March 29, 2007.
(b) The first paragraph of Section 3.04 of the Servicing Agreement
is amended and restated in its entirety as follows:
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts, in
the form of time deposit or demand accounts and shall be titled "Countrywide in
trust for BCAP LLC Trust 2007-AA2 as Purchaser of Mortgage Loans and various
Mortgagors." Countrywide shall provide the Purchaser with written evidence of
the creation of such Custodial Account(s) upon the request of the Purchaser.
(c) The first paragraph of Section 3.13(c) of the Servicing
Agreement is amended and restated in its entirety as follows:
Disposition. Subject to the following paragraph, Countrywide shall use best
efforts to dispose of each REO Property as soon as possible and shall sell each
REO Property no later than three (3) years after title to such REO Property has
been obtained, unless Countrywide determines, and gives an appropriate notice to
the Purchaser, that a longer period is necessary for the orderly disposition of
any REO Property. If a period longer than one (1) year is necessary to sell any
REO Property, Countrywide shall, if requested by the Purchaser, report monthly
to the Purchaser as to the progress being made in selling such REO Property.
Countrywide shall also maintain, on each REO Property, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required and available under the National Flood
Insurance Act of 1968, as amended, flood insurance in the amount required in
Section 3.10 hereof.
(d) The first paragraph of Section 4.02(a) of the Servicing
Agreement is amended and restated in its entirety as follows:
Monthly Reports. Not later than no later than the fifteenth (15th) calendar day
of each month (or if such fifteenth day is not a Business Day, the Business Day
immediately preceding such fifteenth day), Countrywide shall furnish to the
Purchaser via an electronic medium mutually acceptable to the parties, monthly
reports in form and substance reasonably acceptable to the parties ("Monthly
Remittance Advice") with respect to monthly remittance advices, defaulted
Mortgage Loans and realized loss calculations, respectively, attached hereto as
Exhibits B and C which reports shall include with respect to each Mortgage Loan
the following loan-level information: (i) the scheduled balance as of the last
day of the related Due Period, (ii) all Principal Prepayments applied to the
Mortgagor's account during the related Principal Prepayment Period, and (iii)
the delinquency and bankruptcy status of the Mortgage Loan, if applicable;
provided, however, it is understood that Countrywide shall not be obligated to
report on any prepayment penalties or charges.
(e) Exhibits B and C attached hereto, are hereby added to the
Servicing Agreement as Exhibits B and C.
(f) Sections 4.04 and 4.05 of the Servicing Agreement are hereby
deleted.
(g) Section 3.04 of the Servicing Agreement is hereby amended by
adding the following paragraph to the end thereof:
Funds in the Custodial Account shall, if invested, be invested in
Permitted Investments; provided, however, that the Servicer shall be under no
obligation or duty to invest (or otherwise pay interest on) amounts held in the
Custodial Account. All Permitted Investments shall mature or be subject to
redemption or withdrawal no later than one Business Day prior to the next
succeeding Remittance Date (except that if such Permitted Investment is an
obligation of the Servicer, then such Permitted Investment shall mature not
later than such applicable Remittance Date). Any and all investment earnings
from any such Permitted Investment shall be for the benefit of the Servicer and
shall be subject to its withdrawal or order from time to time, and shall not be
part of the Trust. The risk of loss of moneys required to be remitted to the
Master Servicer resulting from such investments shall be borne by and be the
risk of the Servicer. The Servicer shall promptly deposit the amount of any such
loss in the Custodial Account, but in no event later than the related Remittance
Date.
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee on behalf of the Trust.
8. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which the Assignors, Assignee, the Servicer or Company may be merged
or consolidated shall, without the requirement for any further writing, be
deemed Assignors, Assignee, the Servicer or Company, respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by the
Assignors to Assignee and by Assignee to the Trust and nothing contained herein
shall supersede or amend the terms of the Sale and Servicing Agreements.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements
13. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of Barclays:
Barclays Bank PLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx
Telephone: (000) 000-0000
X.xxx@xxxxxx.xxx
In the case of the Depositor:
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
In the case of the Trustee
for the purpose of notices:
Deutsche Bank Trust Company Americas
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Trust Administration - BC0702
for the purpose of remittance:
Deutsche Bank Trust Company Americas
ABA #: 021 001 033
Acct. #: 01419663
Acct. Name: NYLTD Funds Control-Stars West
Ref: Trust Administration - BCAP 2007-AA2
In the case of the Company and Servicer:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Trustee Capacity. It is expressly understood and agreed by the
parties hereto that insofar as this Agreement is executed by the Trustee (i) it
is acknowledge and agreed to by Deutsche Bank National Trust Company in the
exercise of the powers and authority conferred and vested in it as Trustee under
the Trust Agreement, (ii) each of the representations, undertakings and
agreements herein made is intended not as personal representations of the
Trustee but is made and intended for the purpose of binding only the Trust, and
(iii) Deutsche Bank National Trust Company in its individual capacity shall not
be personally liable under any circumstance for the payment of any indebtedness
or expenses or be personally liable for the breach of failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Its: First Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc., its General
Partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Its: First Vice President
BARCLAYS BANK PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Its: Managing Director
BCAP LLC
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Its: Managing Director
XXXXXX FUNDING LLC
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director
ACKNOWLEDGED AND AGREED:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its individual capacity
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Authorized Signer
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Trustee on the Closing Date)
EXHIBIT B
Standard File Layout
Column Name Description Decimal Format Comment Max Size
----------- ----------- ------- -------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer to define a Text up to 10 digits 20
group of loans.
LOAN_NBR A unique identifier assigned to each loan by Text up to 10 digits 10
the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It Maximum length of 30 (Last, 30
is not separated by first and last name. First)
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs 11
interest payment that a borrower is expected to ($)
pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the service 4 Max length of 6 6
fee rate as reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as reported 4 Max length of 6 6
by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
NEW_PAY_AMT The new loan payment amount as reported by the 2 No commas(,) or dollar signs 11
Servicer. ($)
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
ARM_INDEX_RATE The index the Servicer is using to calculate a 4 Max length of 6 6
forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs 11
beginning of the processing cycle. ($)
ACTL_END_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs 11
end of the processing cycle. ($)
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that MM/DD/YYYY 10
the borrower's next payment is due to the
Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs 11
($)
SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs 11
curtailment amount, if applicable. ($)
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs 11
($)
SERV_CURT_DATE_2 The curtailment date associated with the second MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs 11
curtailment amount, if applicable. ($)
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs 11
($)
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs 11
curtailment amount, if applicable. ($)
PIF_AMT The loan "paid in full" amount as reported by 2 No commas(,) or dollar signs 11
the Servicer. ($)
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to indicate Action Code Key: 2
the default/delinquent status of a particular 15=Bankruptcy,
loan. 30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar signs 11
applicable. ($)
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs 11
($)
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, 2 No commas(,) or dollar signs 11
if applicable. ($)
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due 2 No commas(,) or dollar signs 11
at the beginning of the cycle date to be passed ($)
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs 11
investors at the end of a processing cycle. ($)
SCHED_PRIN_AMT The scheduled principal amount as reported by 2 No commas(,) or dollar signs 11
the Servicer for the current cycle -- only ($)
applicable for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar signs 11
service fee amount for the current cycle as ($)
reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar signs 11
Servicer for the current reporting cycle -- ($)
only applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar signs 11
service fee amount for the current reporting ($)
cycle as reported by the Servicer -- only
applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs 11
prepays on his loan as reported by the ($)
Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar signs 11
waived by the servicer. ($)
MOD_DATE The Effective Payment Date of the Modification MM/DD/YYYY 10
for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha 30
or numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or dollar signs 11
advances made by Servicer. ($)
Exhibit C: Standard File Layout - Delinquency Reporting
Column/Header Name Description Decimal Format
------------------ ----------- ------- ------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan
by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment MM/DD/YYYY
is due to the servicer at the end of
processing cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was
filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A
Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or dollar signs ($)
foreclosure sale.
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the
borrower.
LIST_PRICE The price at which an REO property is 2 No commas(,) or dollar signs ($)
marketed.
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or dollar signs ($)
property.
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or
appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
If applicable:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower
to stop paying on a loan. Code indicates
the reason why the loan is in default for
this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,) or dollar signs ($)
Claim
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,) or dollar signs ($)
Company
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or dollar signs ($)
Company
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or dollar signs ($)
EXHIBIT O
EXECUTION COPY
[LOGO - BARCLAYS CAPITAL]
Barclays Bank PLC
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel x00 (0)00 0000 0000
DATE: March 29, 2007
TO: BCAP LLC Trust 2007-AA2, Mortgage Pass-Through Certificates,
Series 2007-AA2, Offered Certificates (the "Trust"),
Deutsche Bank National Trust Company, not individually, but
solely as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
ATTENTION: Trust Administration - BC0701
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Barclays Bank PLC
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER: 1656830B Interest Rate Swap Agreement
The purpose of this long-form confirmation ("Confirmation") is to confirm the
terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Barclays Bank PLC ("Party A") and Deutsche
Bank National Trust Company, not individually, but solely as trustee (the
"Trustee") on behalf of the trust with respect to the BCAP LLC Trust 2007-AA2,
Mortgage Pass-Through Certificates, Series 2007-AA2, Offered Certificates (the
"Trust") ("Party B") created under the Trust Agreement, dated as of February 1,
2007, among BCAP LLC, as Depositor, Deutsche Bank National Trust Company, as
Trustee, and Xxxxx Fargo Bank, N.A., as Custodian (the "Base Agreement"). This
Confirmation evidences a complete and binding agreement between you and us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof. This
Confirmation constitutes a "Confirmation" and also constitutes a "Schedule" as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1. This Confirmation shall supplement, form a part of, and be subject to an
agreement in the form of the ISDA Master Agreement (Multicurrency - Cross
Border) as published and copyrighted in 1992 by the International Swaps
and Derivatives Association, Inc. (the "ISDA Master Agreement"), as if
Party A and Party B had executed an agreement in such form on the date
hereof, with a Schedule as set forth in Item 3 of this Confirmation, and
an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law Only version) as published and copyrighted in 1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph 13
thereof as set forth in Annex A hereto (the "Credit Support Annex"). For
the avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by such ISDA Master Agreement. In the event of any
inconsistency among any of the following documents, the relevant document
first listed shall govern: (i) this Confirmation, exclusive of the
provisions set forth in Item 3 hereof and Annex A hereto; (ii) the
provisions set forth in Item 3 hereof, which are incorporated by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
Each reference herein to a "Section" (unless specifically referencing the
Base Agreement) or to a "Section of this Agreement" will be construed as a
reference to a Section of the ISDA Master Agreement; each reference herein
to a "Part" will be construed as a reference to the provisions herein
deemed incorporated in a Schedule to the ISDA Master Agreement; each
reference herein to a "Paragraph" will be construed as a reference to a
Paragraph of the Credit Support Annex.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation
Period, the amount set forth for
such period on Schedule I attached
hereto.
Trade Date: March 29, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: February 25, 2017, which for the
purpose of the final Fixed Rate
Payer Calculation Period is subject
to No Adjustment, and for the
purpose of the final Floating Rate
Payer Calculation Period is subject
to adjustment in accordance with the
Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer
Period End Dates: The 25th calendar day of each month
during the Term of this Transaction,
commencing April 25, 2007, subject
to No Adjustment.
Fixed Rate Payer
Payment Dates: Early Payment shall be applicable.
For each Calculation Period, the
Fixed Rate Payer Payment Date shall
be the Business Day prior to the
related Fixed Rate Payer Period End
Date.
Fixed Rate: 4.9047%
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer
Period End Dates: The 25th calendar day of
each month during the Term of this
Transaction, commencing April 25,
2007, subject to adjustment in
accordance with the Business Day
Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable.
For each Calculation Period, the
Floating Rate Payer Payment Date
shall be the Business Day prior to
the related Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable
Business Days: New York
Business Day Convention: Modified Following
Calculation Agent: Party A
Account Details and Settlement Information:
Payments to Party A: Correspondent: BARCLAYS BANK PLC NEW YORK
FEED: 000000000
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: 000-00000-0
Payments to Party B: Deutsche Bank National Trust Company
ABA #: 021 001 033
Acct #: 01419663
Acct. Name: NYLTD Funds Control - Stars West
Ref: Trust Administration - BCAP 2007-AA2
3. Provisions Deemed Incorporated in a Schedule to the ISDA Master Agreement:
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will not apply to Party A or Party B for any
purpose.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will
apply to Party A and will apply to Party B.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply
to Party A and will not apply to Party B; provided, however, that
notwithstanding anything to the contrary in Section 5(a)(ii), any
failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support Annex
shall not constitute an Event of Default under Section 5(a)(ii)
unless (A) a Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and (B) such failure
is not remedied on or before the third Local Business Day after
notice of such failure is given to Party A.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex;
provided, however, that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Party A to comply with or
perform any obligation to be complied with or performed by Party A
under the Credit Support Annex shall not constitute an Event of
Default under Section 5(a)(iii) unless (A) a Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days and (B) such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to Party A.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply to
Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in Section
14, except that such term shall not include obligations in respect
of deposits received in the ordinary course of Party A's banking
business.
"Threshold Amount" means with respect to Party A an amount equal to
3% of Party A's shareholders' equity (on a consolidated basis)
determined in accordance with generally accepted accounting
principles in Party A's jurisdiction of incorporation or
organization as at the end of Party A's most recently completed
fiscal year.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to Party
A and Party B; provided that clauses (2), (7) and (9) thereof shall
not apply to Party B; provided further that clause (4) thereof shall
not apply to Party B with respect to proceedings or petitions
instituted or presented by Party A or any Affiliate of Party A;
provided further that clause (6) shall not apply to Party B to the
extent that it refers to (i) any appointment that is effected by or
contemplated in connection with the Base Agreement (as defined
above) or (ii) any appointment to which Party B has not become
subject; and provided further that clause (8) shall not apply to
Party B to the extent that clause (8) relates to clauses of Section
5(a)(vii) that are not applicable to Party B.
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if such
specific party is the Affected Party with respect to a Tax Event, the
Burdened Party with respect to a Tax Event Upon Merger (except as noted
below) or the non-Affected Party with respect to a Credit Event Upon
Merger, as the case may be, such specific party shall have the right to
designate an Early Termination Date in accordance with Section 6 of this
Agreement; conversely, the statement below that such an event will not
apply to a specific party means that such party shall not have such right;
provided, however, with respect to "Illegality" the statement that such
event will apply to a specific party means that upon the occurrence of
such a Termination Event with respect to such party, either party shall
have the right to designate an Early Termination Date in accordance with
Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to Party A
and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will apply to Party B.
(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party A
shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
of a Derivative Provider Trigger Event, the following provisions
will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2)
for an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive
number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions
are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination
Date is to be included.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount equal to:
(a) If a Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding on
or before the day falling ten Local Business Days after
the day on which the Early Termination Date is
designated, or such later day as Party B may specify in
writing to Party A, but in either case no later than one
Local Business Day prior to the Early Termination Date
(such day, the "Latest Settlement Amount Determination
Day"), the Termination Currency Equivalent of the amount
(whether positive or negative) of such Market Quotation;
(b) If, on the Latest Settlement Amount Determination Day,
no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and
one or more Market Quotations from Approved Replacements
have been made and remain capable of becoming legally
binding upon acceptance, the Settlement Amount shall
equal the Termination Currency Equivalent of the amount
(whether positive or negative) of the lowest of such
Market Quotations (for the avoidance of doubt, the
lowest of such Market Quotations shall be the lowest
Market Quotation of such Market Quotations expressed as
a positive number or, if any of such Market Quotations
is expressed as a negative number, the Market Quotation
expressed as a negative number with the largest absolute
value); or
(c) If, on the Latest Settlement Amount Determination Day,
no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding and
no Market Quotation from an Approved Replacement remains
capable of becoming legally binding upon acceptance, the
Settlement Amount shall equal Party B's Loss (whether
positive or negative and without reference to any Unpaid
Amounts) for the relevant Terminated Transaction or
group of Terminated Transactions.
(C) Party A may obtain Market Quotations, and if Party B requests
Party A in writing to obtain Market Quotations, Party A shall
use its reasonable efforts to do so before the Latest
Settlement Amount Determination Day.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with
the following:
"(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, (I) Party B shall pay to Party A
an amount equal to the absolute value of the Settlement Amount
in respect of the Terminated Transactions, (II) Party B shall
pay to Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (III) Party A shall pay to
Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B; provided, however, that (x) the
amounts payable under the immediately preceding clauses (II)
and (III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by Party
A under the immediately preceding clause (III) shall not be
netted-off against any amount payable by Party B under the
immediately preceding clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations from
Approved Replacements remain capable of becoming legally
binding upon acceptance, Party B shall be entitled to accept
only the lowest of such Market Quotations (for the avoidance
of doubt, the lowest of such Market Quotations shall be the
lowest Market Quotation of such Market Quotations expressed as
a positive number or, if any of such Market Quotations is
expressed as a negative number, the Market Quotation expressed
as a negative number with the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply as
provided in Part 5(c).
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Indemnifiable Tax. Notwithstanding the definition of "Indemnifiable
Tax" in Section 14 of this Agreement, all Taxes in relation to
payments by Party A shall be Indemnifiable Taxes unless (i) such
Taxes are assessed directly against Party B and not by deduction or
withholding by Party A or (ii) arise as a result of a Change in Tax
Law (in which case such Tax shall be an Indemnifiable Tax only if
such Tax satisfies the definition of Indemnifiable Tax provided in
Section 14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax, unless the Tax is due to a Change in Tax Law and
otherwise satisfies the definition of Indemnifiable Tax provided in
Section 14.
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A Any form or document required or reasonably Promptly upon reasonable demand by Party B.
requested to allow Party B to make payments
under the Agreement without any deduction or
withholding for or on account of any Tax, or
with such deduction or withholding at a reduced
rate.
Party B (i) A correct, complete and duly executed IRS In each case (i) upon entering into this
Form W-9 (or any successor thereto) of the Trust Agreement, (ii) in the case of a W-8ECI,
that eliminates U.S. federal withholding and W-8IMY, and W-8BEN that does not include a
backup withholding tax on payments under this U.S. taxpayer identification number in line
Agreement, (ii) if requested by Party A, a 6, before December 31 of each third
correct, complete and executed Form W-8IMY of succeeding calendar year, (iii) promptly upon
the Trust, and (iii) a complete and executed IRS reasonable demand by Party A, and (iv)
Form X-0, X-0XXX, X-0XXX, or W-8IMY (with promptly upon actual knowledge that any such
attachments) (as appropriate) from each Form previously provided by Party B has
Certificateholder that is not an "exempt become obsolete or incorrect.
recipient" as that term is defined in Treasury
regulations section 1.6049-4(c)(1)(ii), that
eliminates U.S. federal withholding and backup
withholding tax on payments under this Agreement.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required Form/Document/ Date by which to Covered by
to deliver Certificate be delivered Section 3(d)
document Representation
Party A and Any documents reasonably required by Upon the execution and delivery of Yes
Party B the receiving party to evidence the this Agreement
authority of the delivering party or
its Credit Support Provider, if any,
for it to execute and deliver the
Agreement, this Confirmation, and
any Credit Support Documents to
which it is a party, and to evidence
the authority of the delivering
party or its Credit Support Provider
to perform its obligations under the
Agreement, this Confirmation and any
Credit Support Document, as the case
may be
Party A and A certificate of an authorized officer Upon the execution and delivery of Yes
Party B of the party (except, with respect to this Agreement
Party B, of the Trustee), as to the
incumbency and authority of the
respective officers of the party
signing the Agreement, this
Confirmation, and any relevant Credit
Support Document, as the case may be
Party A An opinion of counsel to Party A Upon the execution and delivery of No
reasonably satisfactory to Party B. this Agreement
Party B An opinion of counsel to Party B Upon the execution and delivery of No
reasonably satisfactory to Party A. this Agreement
Party B An executed copy of the Base Agreement Within 30 days after the date of this No
Agreement.
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 00(00) 000 00000
Phone: 00(00) 000 00000
(For all purposes)
Address for notices or communications to Party B:
Address: 0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - BC0701
Facsimile: (000) 000-0000
Phone: (000) 000 0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in support of
Party A's obligations under this Agreement.
Party B: The Credit Support Annex, solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support
Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole
(including any claim or controversy arising out of or relating to this
Agreement), without regard to the conflict of law provisions thereof other
than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. The parties agree that subparagraph (ii) of Section
2(c) will apply to each Transaction hereunder. Notwithstanding anything to
the contrary in Section 2(c) of the ISDA Master Agreement, amounts that
are payable with respect to the same Calculation Period shall be netted,
as provided in Section 2(c) of the ISDA Master Agreement, even if such
amounts are not due on the same Payment Date.
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in Section
14; provided, however, that Party B shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part 5. Others Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the "Definitions"), and will be
governed in all relevant respects by the provisions set forth in the
Definitions, without regard to any amendment to the Definitions subsequent
to the date hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a "Swap Transaction"
shall be deemed references to a "Transaction" for purposes of this
Agreement, and (ii) references to a "Transaction" in this Agreement shall
be deemed references to a "Swap Transaction" for purposes of the
Definitions. Each term capitalized but not defined in this Agreement shall
have the meaning assigned thereto in the Base Agreement.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support
Annex" after the words "Master Agreement".
(ii) Change of Account. Section 2(b) is hereby amended by the addition of
the following after the word "delivery" in the first line thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(iv) Representations. Section 3 is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Non-Reliance. Party A is acting for its own account, and
with respect to Party B, the Trustee is executing this
Agreement on behalf of Party B in its capacity as
trustee of the Trust. Each party has made its own
independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper
for it based upon its own judgment and upon advice from
such advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of the
other party as investment advice or as a recommendation
to enter into that Transaction, it being understood that
information and explanations related to the terms and
conditions of a Transaction will not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received
from the other party will be deemed to be an assurance
or guarantee as to the expected results of that
Transaction.
(2) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
(5) Eligible Contract Participant. It is an "eligible
contract participant" as defined in Section 1(a)(12) of
the Commodity Exchange Act, as amended."
(v) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by deleting the words "or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party."
(vi) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-" and (ii)
deleting the final paragraph thereof.
(c) Additional Termination Events. The following Additional Termination Events
will apply:
(i) First Rating Trigger Collateral. If (A) it is not the case that a
Xxxxx'x Second Trigger Ratings Event has occurred and been
continuing for 30 or more Local Business Days and (B) Party A has
failed to comply with or perform any obligation to be complied with
or performed by Party A in accordance with the Credit Support Annex,
then an Additional Termination Event shall have occurred with
respect to Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination Event.
(ii) Second Rating Trigger Replacement. If (A) a Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days and (B) (i) at least one Eligible Replacement
has made a Firm Offer to be the transferee of all of Party A's
rights and obligations under this Agreement (and such Firm Offer
remains an offer that will become legally binding upon such Eligible
Replacement upon acceptance by the offeree) and/or (ii) an Eligible
Guarantor has made a Firm Offer to provide an Eligible Guarantee
(and such Firm Offer remains an offer that will become legally
binding upon such Eligible Guarantor immediately upon acceptance by
the offeree), then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
(iii) Amendment of Base Agreement. If, without the prior written consent
of Party A where such consent is required under the Base Agreement,
an amendment is made to the Base Agreement which amendment could
reasonably be expected to have a material adverse effect on the
interests of Party A (excluding, for the avoidance of doubt, any
amendment to the Base Agreement that is entered into solely for the
purpose of appointing a successor servicer, master servicer,
securities administrator, trustee or other service provider) under
this Agreement, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event.
(iv) Termination of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have been paid in accordance with the terms of the Base Agreement,
an Additional Termination Event shall have occurred with respect to
Party B and Party B shall be the sole Affected Party with respect to
such Additional Termination Event.
(v) Securitization Unwind. If a Securitization Unwind (as hereinafter
defined) occurs, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event. The Early
Termination Date in respect of such Additional Termination Event
shall not be earlier than the 10th day of the month of the
Distribution Date upon which final distribution on the Certificates
will be made. As used herein, "Securitization Unwind" means notice
of the requisite amount of a party's intention to exercise its
option to purchase the underlying mortgage loans pursuant the Base
Agreement is given by the Trustee to certificateholders or
noteholders, as applicable, pursuant to the Base Agreement.
(d) Required Ratings Downgrade Event. In the event that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold of each
relevant Swap Rating Agency (such event, a "Required Ratings Downgrade
Event"), then Party A shall, as soon as reasonably practicable and so long
as a Required Ratings Downgrade Event is in effect, at its own expense,
use commercially reasonable efforts to procure either (A) a Permitted
Transfer or (B) an Eligible Guarantee from an Eligible Guarantor.
(e) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security
or otherwise) as a whole or in part any of its rights, obligations
or interests under the Agreement or any Transaction without (a) the
prior written consent of the other party and (b) satisfaction of the
Rating Agency Condition, except that:
(a) a party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into,
or transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy
under this Agreement);
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e); and
(c) Party A may transfer or assign this Agreement to any Person,
including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or
affiliate, a "Transferee") on at least five Business Days'
prior written notice to Party B and the Trustee; provided
that, with respect to this clause (c), (A) as of the date of
such transfer the Transferee will not be required to withhold
or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make
payments of additional amounts pursuant to Section 2(d)(i)(4)
of this Agreement in respect of such Tax (B) a Termination
Event or Event of Default does not occur under this Agreement
as a result of such transfer; (C) such notice is accompanied
by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so
transferred; (D) Party A will be responsible for any costs or
expenses incurred in connection with such transfer and (E)
Party A obtains in respect of such transfer a written
acknowledgement of satisfaction of the Rating Agency Condition
(except for Moody's). Party B will execute such documentation
provided to it as is reasonably deemed necessary by Party A
for the effectuation of any such transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense,
execute such documentation provided to it as is reasonably deemed
necessary by Party A to effect such transfer.
(iii) Upon any transfer of this Agreement by Party A, each of the
transferee and the transferor must be a "dealer in notional
principal contracts" for purposes of Treasury regulations section
1.1001-4(a). For the avoidance of doubt, the Trustee is not
obligated to determine whether each of the transferee and the
transferor are such "dealers in notional principal contracts."
(f) Non-Recourse. Party A acknowledges and agree that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely from
the Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Base Agreement and that Party A will not
have any recourse to any of the directors, officers, employees,
shareholders or affiliates of Party B with respect to any claims, losses,
damages, liabilities, indemnities or other obligations in connection with
any transactions contemplated hereby. In the event that the Trust and the
proceeds thereof, should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and the
proceeds thereof, any claims against or obligations of Party B under the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive. The Trustee
shall not have liability for any failure or delay in making a payment
hereunder to Party A due to any failure or delay in receiving amounts in
the account held by the Trust from the Trust created pursuant to the Base
Agreement. This provision will survive the termination of this Agreement.
(g) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Swap Rating
Agency has been given prior written notice of such designation or
transfer.
(h) No Set-off. Except as expressly provided for in Section 2(c), Section 6 or
Part 1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.".
(i) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction under
this Agreement shall be permitted by either party unless each of the Swap
Rating Agencies has been provided prior written notice of the same and
each relevant Swap Rating Agency (other than Moody's) confirms in writing
(including by facsimile transmission) that it will not downgrade, withdraw
or otherwise modify its then-current ratings of the Certificates or the
Notes.
(j) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other Party and to each Swap Rating
Agency notice of such event or condition; provided that failure to provide
notice of such event or condition pursuant to this Part 5(j) shall not
constitute an Event of Default or a Termination Event.
(k) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in instituting
against Party B, the Trust, or the trust formed pursuant to the Base
Agreement, in any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will preclude,
or be deemed to stop, Party A (i) from taking any action prior to the
expiration of the aforementioned one year and one day period, or if longer
the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
This provision will survive the termination of this Agreement.
(l) Trustee Liability Limitations. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed by Deutsche Bank
National Trust Company ("DBNTC") not in its individual capacity, but
solely as Trustee under the Base Agreement in the exercise of the powers
and authority conferred and invested in it thereunder; (b) DBNTC has been
directed pursuant to the Base Agreement to enter into this Agreement and
to perform its obligations hereunder; (c) each of the representations,
undertakings and agreements herein made on behalf of the Trust is made and
intended not as personal representations of DBNTC but is made and intended
for the purpose of binding only the Trust; and (d) under no circumstances
shall DBNTC in its individual capacity be personally liable for any
payments hereunder or for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this
Agreement.
(m) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) in any
respect, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
this Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used in or
in connection with any such Section) shall be so held to be invalid or
unenforceable.
The parties shall endeavor to engage in good faith negotiations to replace
any invalid or unenforceable term, provision, covenant or condition with a
valid or enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(n) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
(o) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(p) Regarding Party A. Party B acknowledges and agrees that Party A, in its
capacity as swap provider, has had and will have no involvement in and,
accordingly Party A accepts no responsibility for: (i) the establishment,
structure, or choice of assets of Party B; (ii) the selection of any
person performing services for or acting on behalf of Party B; (iii) the
selection of Party A as the Counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and
other information (other than disclosure and information furnished by
Party A) contained in any offering circular for the Certificates, the Base
Agreement, or any other agreements or documents used by Party B or any
other party in connection with the marketing and sale of the Certificates;
(vi) the ongoing operations and administration of Party B, including the
furnishing of any information to Party B which is not specifically
required under this Agreement; or (vii) any other aspect of Party B's
existence.
(q) Additional Definitions.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Base Agreement. In addition, as
used in this Agreement, the following terms shall have the meanings set
forth below, unless the context clearly requires otherwise:
"Approved Ratings Threshold" means each of the S&P Approved Ratings
Threshold and the Moody's First Trigger Ratings Threshold.
"Approved Replacement" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), and (c) of the definition of Permitted Transfer
if such entity were a Transferee, as defined in the definition of
Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of Default
with respect to which Party A is a Defaulting Party, (ii) a
Termination Event (other than Illegality or Tax Event) with respect
to which Party A is the sole Affected Party or (iii) an Additional
Termination Event with respect to which Party A is the sole Affected
Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations (for the avoidance
of doubt, not limited to payment obligations) of Party A or an
Eligible Replacement to Party B under this Agreement that is
provided by an Eligible Guarantor as principal debtor rather than
surety and that is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency
Condition, and either (A) a law firm has given a legal opinion
confirming that none of the guarantor's payments to Party B under
such guarantee will be subject to Tax collected by withholding or
(B) such guarantee provides that, in the event that any of such
guarantor's payments to Party B are subject to Tax collected by
withholding, such guarantor is required to pay such additional
amount as is necessary to ensure that the net amount actually
received by Party B (free and clear of any Tax collected by
withholding) will equal the full amount Party B would have received
had no such withholding been required.
"Eligible Guarantor" means an entity that (A) has credit ratings at
least equal to the Approved Ratings Threshold or (B) has credit
ratings at least equal to the Required Ratings Threshold, provided,
for the avoidance of doubt, that an Eligible Guarantee of an
Eligible Guarantor with credit ratings below the Approved Ratings
Threshold will not cause a Collateral Event (as defined in the
Credit Support Annex) not to occur or continue.
"Eligible Replacement" means an entity (A) that has credit ratings
at least equal to the Approved Ratings Threshold, (B) has credit
ratings at least equal to the Required Ratings Threshold, provided,
for the avoidance of doubt, that an Eligible Guarantee of an
Eligible Guarantor with credit ratings below the Approved Ratings
Threshold will not cause a Collateral Event (as defined in the
Credit Support Annex) not to occur or continue, or (C) the present
and future obligations (for the avoidance of doubt, not limited to
payment obligations) of which entity to Party B under this Agreement
(or any replacement agreement, as applicable) are guaranteed
pursuant to an Eligible Guarantee provided by an Eligible Guarantor.
"Firm Offer" means (A) with respect to an Eligible Replacement, a
quotation from such Eligible Replacement (i) in an amount equal to
the actual amount payable by or to Party B in consideration of an
agreement between Party B and such Eligible Replacement to replace
Party A as the counterparty to this Agreement by way of novation or,
if such novation is not possible, an agreement between Party B and
such Eligible Replacement to enter into a Replacement Transaction
(assuming that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such Eligible
Replacement to replace Party A as the counterparty to this Agreement
or enter a Replacement Transaction that will become legally binding
upon such Eligible Replacement upon acceptance by Party B, and (B)
with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally
binding upon such Eligible Guarantor upon acceptance by the offeree.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Moody's First Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A2" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-1", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A1".
"Moody's Second Trigger Ratings Event" means that no Relevant Entity
has credit ratings from Moody's at least equal to the Moody's Second
Trigger Rating Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A3" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of
Party A's rights, liabilities, duties and obligations under this
Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible
Replacement that is a recognized dealer in interest rate swaps, (b)
as of the date of such transfer the Transferee would not be required
to withhold or deduct on account of Tax from any payments under this
Agreement or would be required to gross up for such Tax under
Section 2(d)(i)(4), (c) an Event of Default or Termination Event
would not occur as a result of such transfer, (d) pursuant to a
written instrument (the "Transfer Agreement"), the Transferee
acquires and assumes all rights and obligations of Party A under the
Agreement and the relevant Transaction, (e) such Transfer Agreement
is effective to transfer to the Transferee all, but not less than
all, of Party A's rights and obligations under the Agreement and all
relevant Transactions; (f) Party A will be responsible for any costs
or expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (g)
Moody's has been given prior written notice of such transfer and the
Rating Agency Condition (except for Xxxxx'x) is satisfied; and (h)
such transfer otherwise complies with the terms of the Base
Agreement.
"Rating Agency Condition" means, with respect to any particular
proposed act or omission to act hereunder that the party acting or
failing to act must consult with each of the relevant Swap Rating
Agencies and receive from each such Swap Rating Agency a prior
written confirmation that the proposed action or inaction would not
cause a downgrade or withdrawal of the then-current rating of any
Certificates or Notes; provided, however, with respect to Moody's,
the Rating Agency Condition will be satisfied upon the delivery of
written notice to Moody's of such proposed act or omission to act
where consultation with each of the relevant Swap Rating Agencies is
required.
"Relevant Entity" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or
group of transactions that (i) would have the effect of preserving
for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that Date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to
Transactions that are not Terminated Transaction.
"Required Ratings Downgrade Event" shall have the meaning assigned
thereto in Part 5(d).
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold and the Moody's Second Trigger Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
short-term unsecured and unsubordinated debt rating from S&P of
"A-1", or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of "A+".
"S&P Required Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a
long-term unsecured and unsubordinated debt rating from S&P of
"BBB+".
"Swap Rating Agencies" means, with respect to any date of
determination, each of S&P and Moody's, but only to the extent that
each such rating agency is then providing a rating for any of the
certificates or notes issued under the Base Agreement.
[Remainder of this page intentionally left blank.]
The time of dealing will be confirmed by Party A upon written request. Barclays
is regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding within
three (3) Business Days by promptly signing in the space provided below and both
(i) faxing the signed copy to Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operations,
Fax x(00) 00-0000-0000/6857, Tel x(00) 00-0000-0000/6904/6965, and (ii) mailing
the signed copy to Barclays Bank PLC, 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxx X00 0XX, Attention of Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operation.
Your failure to respond within such period shall not affect the validity or
enforceability of the Transaction against you. This facsimile shall be the only
documentation in respect of the Transaction and accordingly no hard copy
versions of this Confirmation for this Transaction shall be provided unless
Party B requests such a copy.
----------------------------- -------------------------------------------------
For and on behalf of For and on behalf of
BARCLAYS BANK PLC BCAP LLC Trust 2007-AA2
By: Deutsche Bank National Trust Company, not
individually, but solely as trustee of the Trust
----------------------------- -------------------------------------------------
/s/ Xxxxx Xxxxxxxxxxx /s/ Xxx Xxxxxxxx
Name: Xxxxx Xxxxxxxxxxx Name: Xxx Xxxxxxxx
Title: Authorized Signer Title: Authorized Signer
Date: Date:
----------------------------- -------------------------------------------------
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may share
with each other information, including non-public credit information, concerning
its clients and prospective clients. If you do not want such information to be
shared, you must write to the Director of Compliance, Barclays Bank PLC, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
SCHEDULE I
From and including To but excluding Notional Amount (USD)
------------------ ---------------- ---------------------
29-Mar-07 25-Apr-07 1,069,051,183.13
25-Apr-07 25-May-07 1,037,676,437.49
25-May-07 25-Jun-07 1,007,222,124.04
25-Jun-07 25-Jul-07 977,661,248.93
25-Jul-07 25-Aug-07 948,967,609.77
25-Aug-07 25-Sep-07 921,115,772.41
25-Sep-07 25-Oct-07 894,081,048.44
25-Oct-07 25-Nov-07 867,839,473.32
25-Nov-07 25-Dec-07 842,367,785.15
25-Dec-07 25-Jan-08 817,643,404.12
25-Jan-08 25-Feb-08 793,644,412.42
25-Feb-08 25-Mar-08 770,349,534.95
25-Mar-08 25-Apr-08 747,738,120.41
25-Apr-08 25-May-08 725,790,123.01
25-May-08 25-Jun-08 704,486,084.75
25-Jun-08 25-Jul-08 683,807,118.16
25-Jul-08 25-Aug-08 663,734,889.60
25-Aug-08 25-Sep-08 644,251,603.02
25-Sep-08 25-Oct-08 625,339,984.18
25-Oct-08 25-Nov-08 606,983,265.39
25-Nov-08 25-Dec-08 589,165,170.59
25-Dec-08 25-Jan-09 571,869,901.05
25-Jan-09 25-Feb-09 555,082,121.26
25-Feb-09 25-Mar-09 538,786,945.40
25-Mar-09 25-Apr-09 522,969,924.20
25-Apr-09 25-May-09 507,473,296.22
25-May-09 25-Jun-09 492,575,128.22
25-Jun-09 25-Jul-09 478,114,136.64
25-Jul-09 25-Aug-09 464,004,764.12
25-Aug-09 25-Sep-09 450,382,230.30
25-Sep-09 25-Oct-09 436,136,042.66
25-Oct-09 25-Nov-09 421,645,872.16
25-Nov-09 25-Dec-09 407,543,361.69
25-Dec-09 25-Jan-10 395,200,343.40
25-Jan-10 25-Feb-10 378,234,375.84
25-Feb-10 25-Mar-10 365,352,902.49
25-Mar-10 25-Apr-10 354,625,994.76
25-Apr-10 25-May-10 344,213,885.30
25-May-10 25-Jun-10 334,107,339.37
25-Jun-10 25-Jul-10 324,297,393.09
25-Jul-10 25-Aug-10 314,775,345.41
25-Aug-10 25-Sep-10 305,532,750.48
25-Sep-10 25-Oct-10 296,561,410.14
25-Oct-10 25-Nov-10 287,853,366.65
25-Nov-10 25-Dec-10 279,400,895.67
25-Dec-10 25-Jan-11 271,196,499.37
25-Jan-11 25-Feb-11 263,232,899.82
25-Feb-11 25-Mar-11 255,503,032.55
25-Mar-11 25-Apr-11 248,000,040.28
25-Apr-11 25-May-11 240,717,266.83
25-May-11 25-Jun-11 233,648,251.25
25-Jun-11 25-Jul-11 226,755,692.47
25-Jul-11 25-Aug-11 219,889,885.59
25-Aug-11 25-Sep-11 213,385,142.06
25-Sep-11 25-Oct-11 206,994,408.04
25-Oct-11 25-Nov-11 200,638,506.21
25-Nov-11 25-Dec-11 193,833,707.72
25-Dec-11 25-Jan-12 178,604,603.97
25-Jan-12 25-Feb-12 129,187,031.37
25-Feb-12 25-Mar-12 17,211,899.03
25-Mar-12 25-Apr-12 13,825,541.62
25-Apr-12 25-May-12 13,418,502.46
25-May-12 25-Jun-12 13,023,435.46
25-Jun-12 25-Jul-12 12,639,988.75
25-Jul-12 25-Aug-12 12,267,820.81
25-Aug-12 25-Sep-12 11,906,600.14
25-Sep-12 25-Oct-12 11,556,004.99
25-Oct-12 25-Nov-12 11,215,723.06
25-Nov-12 25-Dec-12 10,885,451.21
25-Dec-12 25-Jan-13 10,564,895.20
25-Jan-13 25-Feb-13 10,253,769.46
25-Feb-13 25-Mar-13 9,908,241.60
25-Mar-13 25-Apr-13 9,616,496.56
25-Apr-13 25-May-13 9,319,364.03
25-May-13 25-Jun-13 9,044,939.59
25-Jun-13 25-Jul-13 8,704,916.70
25-Jul-13 25-Aug-13 8,448,593.48
25-Aug-13 25-Sep-13 8,156,001.51
25-Sep-13 25-Oct-13 7,915,891.44
25-Oct-13 25-Nov-13 7,448,937.44
25-Nov-13 25-Dec-13 6,603,516.34
25-Dec-13 25-Jan-14 5,658,290.99
25-Jan-14 25-Feb-14 3,124,889.42
25-Feb-14 25-Mar-14 938,923.71
25-Mar-14 25-Apr-14 911,163.40
25-Apr-14 25-May-14 884,222.37
25-May-14 25-Jun-14 858,076.48
25-Jun-14 25-Jul-14 832,702.29
25-Jul-14 25-Aug-14 808,077.07
25-Aug-14 25-Sep-14 784,178.74
25-Sep-14 25-Oct-14 760,985.86
25-Oct-14 25-Nov-14 738,477.65
25-Nov-14 25-Dec-14 716,633.93
25-Dec-14 25-Jan-15 695,435.12
25-Jan-15 25-Feb-15 674,862.19
25-Feb-15 25-Mar-15 654,896.70
25-Mar-15 25-Apr-15 635,520.74
25-Apr-15 25-May-15 616,716.92
25-May-15 25-Jun-15 598,468.39
25-Jun-15 25-Jul-15 580,758.78
25-Jul-15 25-Aug-15 563,572.18
25-Aug-15 25-Sep-15 546,893.18
25-Sep-15 25-Oct-15 530,706.81
25-Oct-15 25-Nov-15 514,998.54
25-Nov-15 25-Dec-15 499,754.27
25-Dec-15 25-Jan-16 484,960.33
25-Jan-16 25-Feb-16 470,603.42
25-Feb-16 25-Mar-16 456,670.67
25-Mar-16 25-Apr-16 443,149.56
25-Apr-16 25-May-16 430,027.94
25-May-16 25-Jun-16 414,350.42
25-Jun-16 25-Jul-16 397,508.13
25-Jul-16 25-Aug-16 370,265.87
25-Aug-16 25-Sep-16 343,187.90
25-Sep-16 25-Oct-16 333,075.13
25-Oct-16 25-Nov-16 318,952.40
25-Nov-16 25-Dec-16 286,966.43
25-Dec-16 25-Jan-17 114,194.56
25-Jan-17 25-Feb-17 64,852.97
Annex A
Paragraph 13 of the Credit Support Annex
EXECUTION COPY
ANNEX A
ISDA(R)
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of March 29, 2007 between
Barclays Bank PLC (hereinafter referred to as "Party A" or "Pledgor")
and
BCAP LLC Trust 2007-AA2, Mortgage Pass-Through Certificates, Series
2007-AA2, Group I Offered Certificates (the "Trust") (hereinafter referred to
as "Party B" or "Secured Party") by Deutsche Bank National Trust Company,
not individually, but solely as trustee (the "Trustee")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Paragraph 13. Elections and Variables.
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations:
With respect to Party A: not applicable.
With respect to Party B: not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a)
as amended (I) by deleting the words "upon a demand made by
the Secured Party on or promptly following a Valuation Date"
and inserting in lieu thereof the words "not later than the
close of business on the next Local Business Day following a
Valuation Date" and (II) by deleting in its entirety the
sentence beginning "Unless otherwise specified in Paragraph
13" and ending "(ii) the Value as of that Valuation Date of
all Posted Credit Support held by the Secured Party." and
inserting in lieu thereof the following:
The "Delivery Amount" applicable to the Pledgor for any
Valuation Date will equal the greatest of
(1) the amount by which (a) the S&P Credit Support Amount
for such Valuation Date exceeds (b) the S&P Value as of
such Valuation Date of all Posted Credit Support held by
the Secured Party,
(2) the amount by which (a) the Xxxxx'x First Trigger Credit
Support Amount for such Valuation Date exceeds (b) the
Xxxxx'x First Trigger Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party, and
(3) the amount by which (a) the Xxxxx'x Second Trigger
Credit Support Amount for such Valuation Date exceeds
(b) the Xxxxx'x Second Trigger Value as of such
Valuation Date of all Posted Credit Support held by the
Secured Party.
(B) "Return Amount" has the meaning specified in Paragraph 3(b) as
amended by deleting in its entirety the sentence beginning
"Unless otherwise specified in Paragraph 13" and ending "(ii)
the Credit Support Amount." and inserting in lieu thereof the
following:
The "Return Amount" applicable to the Secured Party for any
Valuation Date will equal the least of
(1) the amount by which (a) the S&P Value as of such
Valuation Date of all Posted Credit Support held by the
Secured Party exceeds (b) the S&P Credit Support Amount
for such Valuation Date,
(2) the amount by which (a) the Xxxxx'x First Trigger Value
as of such Valuation Date of all Posted Credit Support
held by the Secured Party exceeds (b) the Xxxxx'x First
Trigger Credit Support Amount for such Valuation Date,
and
(3) the amount by which (a) the Xxxxx'x Second Trigger Value
as of such Valuation Date of all Posted Credit Support
held by the Secured Party exceeds (b) the Xxxxx'x Second
Trigger Credit Support Amount for such Valuation Date.
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Credit
Support Amount, the Xxxxx'x First Trigger Credit Support
Amount, or the Xxxxx'x Second Trigger Credit Support Amount,
in each case for such Valuation Date, as provided in
Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
(ii) Eligible Collateral.
On any date, the following items will qualify as "Eligible
Collateral" (for the avoidance of doubt, all Eligible Collateral to
be denominated in USD):
Xxxxx'x Xxxxx'x
S&P First Trigger Second Trigger
Valuation Valuation Valuation
Collateral Percentage Percentage Percentage
---------- ---------- ------------- --------------
(A) Cash 100% 100% 100%
(B) Fixed-rate negotiable debt
obligations issued by the
U.S. Treasury Department
having a remaining maturity 98.9% 100% 100%
on such date of not more
than one year
(C) Fixed-rate negotiable debt
obligations issued by the
U.S. Treasury Department
having a remaining maturity
on such date of more than 92.5% 100% 94%
one year but not more than
ten years
(D) Fixed-rate negotiable debt
obligations issued by the
U.S. Treasury Department 88.6% 100% 88%
having a remaining maturity
on such date of more than
ten years
Notwithstanding the Valuation Percentages set forth in the preceding
table, upon the first Transfer of Eligible Collateral under this Annex,
the Pledgor may, at the Pledgor's expense, agree the Valuation
Percentages in relation to (B) through (D) above with the relevant
rating agency (to the extent such rating agency is providing a rating
for the Certificates), and upon such agreement as evidenced in writing,
such Valuation Percentages shall supersede those set forth in the
preceding table.
(iii) Other Eligible Support.
The following items will qualify as "Other Eligible Support" for the
party specified:
Such Other Eligible Support as the Pledgor may designate; provided,
at the expense of the Pledgor, the prior written consent of the
relevant rating agency (to the extent such rating agency is
providing a rating for the Certificates) shall have been obtained.
For the avoidance of doubt, there are no items that qualify as Other
Eligible Support as of the date of this Annex.
(iv) Threshold.
(A) "Independent Amount" means zero with respect to Party A and
Party B.
(B) "Threshold" means, with respect to Party A and any Valuation
Date, zero if (i) no Relevant Entity has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or
(ii) a Collateral Event has occurred and has been continuing
(x) for at least 30 days or (y) since this Annex was executed;
otherwise, infinity.
"Threshold" means, with respect to Party B and any Valuation
Date, infinity.
(C) "Minimum Transfer Amount" means USD 100,000 with respect to
Party A and Party B; provided, however, that if the aggregate
Class Certificate Balance of the Certificates rated by S&P
ceases to be more than USD 50,000,000, "Minimum Transfer
Amount" means USD 50,000, and provided further, with respect
to the Secured Party at any time when the Secured Party is a
Defaulting Party, "Minimum Transfer Amount" means zero.
(D) Rounding: The Delivery Amount will be rounded up and the
Return Amount will be rounded down to the nearest multiple of
USD 1,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A. The Valuation Agent's calculations
shall be made in accordance with standard market practices using
commonly accepted third party sources such as Bloomberg or Reuters.
(ii) "Valuation Date" means each Local Business Day.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided that
the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local
Business Day.
(v) External Verification. Notwithstanding anything to the contrary in
the definitions of Valuation Agent or Valuation Date, at any time at
which neither Party A nor, to the extent applicable, its Credit
Support Provider has a long-term unsubordinated and unsecured debt
rating of at least "BBB+" from S&P, the Valuation Agent shall (A)
calculate the Secured Party's Exposure and the S&P Value of Posted
Credit Suppport on each Valuation Date based on internal marks and
(B) verify such calculations with external marks monthly by
obtaining on the last Local Business Day of each calendar month two
external marks for each Transaction to which this Annex relates and
for all Posted Credit Support; such verification of the Secured
Party's Exposure shall be based on the higher of the two external
marks. Each external xxxx in respect of a Transaction shall be
obtained from an independent Reference Market-maker that would be
eligible and willing to enter into such Transaction in the absence
of the current derivative provider, provided that an external xxxx
xxx not be obtained from the same Reference Market-maker more than
four times in any 12-month period. The Valuation Agent shall obtain
these external marks directly or through an independent third party,
in either case at no cost to Party B. The Valuation Agent shall
calculate on each Valuation Date (for purposes of this paragraph,
the last Local Business Day in each calendar month referred to above
shall be considered a Valuation Date) the Secured Party's Exposure
based on the greater of the Valuation Agent's internal marks and the
external marks received. If the S&P Value on any such Valuation Date
of all Posted Credit Support then held by the Secured Party is less
than the S&P Credit Support Amount on such Valuation Date (in each
case as determined pursuant to this paragraph), Party A shall,
within three Local Business Days of such Valuation Date, Transfer to
the Secured Party Eligible Credit Support having an S&P Value as of
the date of Transfer at least equal to such deficiency.
(vi) Notice to S&P. At any time at which neither Party A nor, to the
extent applicable, its Credit Support Provider has a long-term
unsubordinated and unsecured debt rating of at least "BBB+" from
S&P, the Valuation Agent shall provide to S&P not later than the
Notification Time on the Local Business Day following each Valuation
Date its calculations of the Secured Party's Exposure and the S&P
Value of any Eligible Credit Support or Posted Credit Support for
that Valuation Date. The Valuation Agent shall also provide to S&P
any external marks received pursuant to the preceding paragraph.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party if the Termination Event
occurs with respect to that party): None.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If specified here as applicable, then the Pledgor must
obtain the Secured Party's consent for any substitution pursuant to
Paragraph 4(d): Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m. New York time on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. Notwithstanding anything to the contrary in Paragraph 12, for
the purpose of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx'x
First Trigger Value, and Xxxxx'x Second Trigger Value, on any date,
of Eligible Collateral will be calculated as follows:
For Eligible Collateral comprised of Cash, the amount of such Cash.
For Eligible Collateral comprising securities, the sum of (A) the
product of (1)(x) the bid price at the Valuation Time for such
securities on the principal national securities exchange on which
such securities are listed, or (y) if such securities are not listed
on a national securities exchange, the bid price for such securities
quoted at the Valuation Time by any principal market maker for such
securities selected by the Valuation Agent, or (z) if no such bid
price is listed or quoted for such date, the bid price listed or
quoted (as the case may be) at the Valuation Time for the day next
preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and
(B) the accrued interest on such securities (except to the extent
Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or
included in the applicable price referred to in the immediately
preceding clause (A)) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply; provided,
that the obligation of the appropriate party to deliver the
undisputed amount to the other party will not arise prior to the
time that would otherwise have applied to the Transfer pursuant to,
or deemed made, under Paragraph 3 if no dispute had arisen.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians.
Party B is not and will not be entitled to hold Posted Collateral.
Party B's Custodian will be entitled to hold Posted Collateral
pursuant to Paragraph 6(b); provided that the Custodian for Party B
shall be the same banking institution that acts as Trustee for the
Certificates. The Custodian or its parent shall have a short-term
unsecured and unsubordinated debt rating from S&P of at least "A-1."
Initially, the Custodian for Party B is: the Trustee.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B; therefore, Party B will not have any of the rights
specified in Paragraph 6(c)(i) or 6 (c)(ii); provided, however, that
the Trustee shall invest Cash Posted Credit Support in such
investments as designated by Party A, with losses (net of gains)
incurred in respect of such investments to be for the account of
Party A; provided further, that such investments designated by Party
A shall be limited to money market funds rated "AAAm" or "AAAm-G" by
S&P and from which such invested Cash Posted Credit Support may be
withdrawn upon no more than 2 Local Business Day's notice of a
request for withdrawal.
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the actual interest rate
earned on Posted Collateral in the form of Cash pursuant to
Paragraph 13(g)(ii).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the second Local Business Day following the end of
each calendar month and on any other Local Business Day on which
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b); provided, however, that the obligation
of Party B to Transfer any Interest Amount to Party A shall be
limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). There are no additional representations by
either party.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(k) Demands and Notices.All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to or made
at the following addresses, or at such other address as the relevant party
may from time to time designate by giving notice (in accordance with the
terms of this paragraph) to the other party:
If to Party A:
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX, England
Attention: Swaps Documentation
Facsimile No.: 0000-000-0000/6858
Telephone No.: 0000-000-0000/6904
with a copy to:
General Counsel's Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notices to Party A shall not be deemed effective unless
delivered to the London address set forth above.
If to Party B or Custodian:
BCAP LLC Trust 0000-XX0
x/x Xxxxxxxx Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Trust Administration - BC0701
(l) Address for Transfers. Each Transfer hereunder shall be made to the
address specified below or to an address specified in writing from time to
time by the party to which such Transfer will be made.
If to Party A:
For Cash:
Barclays Bank PLC, NY
ABA #000-000-000
F/O Barclays Swaps & Options Group NY
A/C #: 050019228
REF: Collateral
For Treasury Securities:
Bank of NYC/BBPLCLDN
ABA #000-000-000
If to Party B:
Deutsche Bank National Trust Company
ABA #: 021 001 033
Acct #: 01419663
Acct. Name: NYLTD Funds Control - Stars West
Ref: Trust Administration - BCAP 2007-AA2
(m) Other Provisions.
(i) Collateral Account. The Secured Party shall cause any Custodian
appointed hereunder to open and maintain a segregated trust account
and to hold, record and identify all the Posted Collateral in such
segregated trust account and, subject to Paragraph 8(a), such Posted
Collateral shall at all times be and remain the property of the
Pledgor and shall at no time constitute the property of, or be
commingled with the property of, the Secured Party or the Custodian.
(ii) Agreement as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in this Annex, (a) the term "Secured Party" as used in this Annex
means only Party B, (b) the term "Pledgor" as used in this Annex
means only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2, the acknowledgement in the final sentence of Paragraph
8(a) and the representations in Paragraph 9.
(iii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Xxxxx'x
First Trigger Value, Xxxxx'x Second Trigger Value". Paragraph
4(d)(ii) is hereby amended by (A) deleting the words "a Value" and
inserting in lieu thereof "an S&P Value, Xxxxx'x First Trigger
Value, and Xxxxx'x Second Trigger Value" and (B) deleting the words
"the Value" and inserting in lieu thereof "S&P Value, Xxxxx'x First
Trigger Value, and Xxxxx'x Second Trigger Value". Paragraph 5 (flush
language) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "S&P Value, Xxxxx'x First Trigger Value,
or Xxxxx'x Second Trigger Value". Paragraph 5(i) (flush language) is
hereby amended by deleting the word "Value" and inserting in lieu
thereof "S&P Value, Xxxxx'x First Trigger Value, and Xxxxx'x Second
Trigger Value". Paragraph 5(i)(C) is hereby amended by deleting the
word "the Value, if" and inserting in lieu thereof "any one or more
of the S&P Value, Xxxxx'x First Trigger Value, or Xxxxx'x Second
Trigger Value, as may be". Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words "the Value" and inserting
in lieu thereof "any one or more of the S&P Value, Xxxxx'x First
Trigger Value, or Xxxxx'x Second Trigger Value" and (2) deleting the
second instance of the words "the Value" and inserting in lieu
thereof "such disputed S&P Value, Xxxxx'x First Trigger Value, or
Xxxxx'x Second Trigger Value". Each of Paragraph 8(b)(iv)(B) and
Paragraph 11(a) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "least of the S&P Value, Xxxxx'x First
Trigger Value, and Xxxxx'x Second Trigger Value".
(iv) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be
the printed form of ISDA Credit Support Annex (Bilateral Form - ISDA
Agreements Subject to New York Law Only version) as published and
copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
(v) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i)
will apply to Party B solely in respect of Party B's obligations
under Paragraph 3(b) of the Credit Support Annex. Notwithstanding
anything to the contrary in Paragraph 7, any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall only be an
Event of Default if (A) a Required Ratings Downgrade Event has
occurred and been continuing for 30 or more Local Business Days and
(B) such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A.
(vi) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured
Party for, all transfer and other taxes and other costs involved in
any Transfer of Eligible Collateral.
(vii) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof
the words "less any applicable withholding taxes."
(viii) Additional Definitions. As used in this Annex:
"Collateral Event" means that no Relevant Entity has credit ratings
at least equal to the Approved Ratings Threshold.
"Exposure" has the meaning specified in Paragraph 12, except that
after the word "Agreement" the words "(assuming, for this purpose
only, that Part 1(f) of the Schedule is deleted)" shall be inserted.
"Local Business Day" means: any day on which (A) commercial banks
are open for business (including dealings in foreign exchange and
foreign currency deposits) in London, New York and the location of
the Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the
parties for the delivery of Eligible Collateral is open for
acceptance and execution of settlement instructions (or in the case
of a Transfer of Cash or other Eligible Collateral for which
delivery is contemplated by other means a day on which commercial
banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and such other places as the
parties shall agree.
"Xxxxx'x First Trigger Additional Collateralized Amount" means, with
respect to any Transaction and any Valuation Date, the product of
the applicable Xxxxx'x First Trigger Factor set forth in Table 1 and
the Notional Amount for such Transaction for the Calculation Period
which includes such Valuation Date.
"Xxxxx'x First Trigger Event" means that no Relevant Entity has
credit ratings from Xxxxx'x at least equal to the Xxxxx'x First
Trigger Ratings Threshold.
"Xxxxx'x First Trigger Credit Support Amount" means, for any
Valuation Date, the excess, if any, of
(I) (A) for any Valuation Date on which (I) a Xxxxx'x First
Trigger Event has occurred and has been continuing (x)
for at least 30 Local Business Days or (y) since this
Annex was executed and (II) it is not the case that a
Xxxxx'x Second Trigger Ratings Event has occurred and
been continuing for at least 30 Local Business Days, an
amount equal to the greater of (a) zero and (b) sum of
(i) the Secured Party's Exposure for such Valuation Date
and (ii) the aggregate of Xxxxx'x First Trigger
Additional Collateralized Amounts for all Transactions;
or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"Xxxxx'x First Trigger Value" means, on any date and with respect to
any Eligible Collateral other than Cash, the bid price obtained by
the Valuation Agent multiplied by the Xxxxx'x First Trigger
Valuation Percentage for such Eligible Collateral set forth in
Paragraph 13(b)(ii).
"Xxxxx'x Second Trigger Additional Collateralized Amount" means,
with respect to any Transaction and any Valuation Date, (A) if such
Transaction is not a Transaction-Specific Hedge, the product of the
applicable Xxxxx'x Second Trigger Factor set forth in Table 2 and
the Notional Amount for such Transaction for the Calculation Period
which includes such Valuation Date and (B) if such Transaction is a
Transaction-Specific Hedge, the product of the applicable Xxxxx'x
Second Trigger Factor set forth in Table 3 and the Notional Amount
for such Transaction for the Calculation Period which includes such
Valuation Date.
"Xxxxx'x Second Trigger Ratings Event" means that no Relevant Entity
has credit ratings from Xxxxx'x at least equal to the Xxxxx'x Second
Trigger Ratings Threshold.
"Xxxxx'x Second Trigger Credit Support Amount" means, for any
Valuation Date, the excess, if any, of
(I) (A) for any Valuation Date on which it is the case that a
Xxxxx'x Second Trigger Ratings Event has occurred and
been continuing for at least 30 Local Business Days, an
amount equal to the greatest of (a) zero, (b) the sum of
the amounts of the next payment due to be paid by Party
A under each Transaction to which this Annex relates,
and (c) the sum of (x) the Secured Party's Exposure for
such Valuation Date and (y) the aggregate of Xxxxx'x
Second Trigger Additional Collateralized Amounts for all
Transactions; or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"Xxxxx'x Second Trigger Value" means, on any date and with respect
to any Eligible Collateral other than Cash, the bid price obtained
by the Valuation Agent multiplied by the Xxxxx'x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in
Paragraph 13(b)(ii).
"S&P Credit Support Amount" means, for any Valuation Date, the
excess, if any, of
(I) (A) for any Valuation Date on which (i) no Relevant Entity
has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold or (ii) an S&P Rating
Threshold Event has occurred and been continuing for at
least 30 days, an amount equal to the sum of (1) 100.0%
of the Secured Party's Exposure for such Valuation Date
and (2) the product of the S&P Volatility Buffer for
each Transaction to which this Annex relates and the
Notional Amount of each such Transaction for the
Calculation Period which includes such Valuation Date,
or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"S&P Rating Threshold Event" means, on any date, no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved
Ratings Threshold.
"S&P Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (A) the bid price
obtained by the Valuation Agent for such Eligible Collateral and (B)
the S&P Valuation Percentage for such Eligible Collateral set forth
in paragraph 13(b)(ii).
"S&P Volatility Buffer" means, for any Transaction, the related
percentage set forth in the following table.
-------------------------------------------------------------------------------------------
The higher of the S&P Remaining Remaining Remaining Remaining
credit rating of (i) Party Weighted Weighted Weighted Weighted
A and (ii) the Credit Average Average Average Average
Support Provider of Maturity Maturity Maturity Maturity
Party A, if applicable up to 3 years up to 5 years up to 10 years up to 30 years
-------------------------------------------------------------------------------------------
At least "A-2" 2.75% 3.25% 4.00% 4.75%
-------------------------------------------------------------------------------------------
"A-3" 3.25% 4.00% 5.00% 6.25%
-------------------------------------------------------------------------------------------
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
-------------------------------------------------------------------------------------------
"Transaction-Specific Hedge" means any Transaction that is a cap,
floor or swaption, or a Transaction in respect of which (x) the
notional amount is "balance guaranteed" or (y) the notional amount
for any Calculation Period otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
"Valuation Percentage" shall mean, for purposes of determining the
S&P Value, Xxxxx'x First Trigger Value, or Xxxxx'x Second Trigger
Value with respect to any Eligible Collateral or Posted Collateral,
the applicable S&P Valuation Percentage, Xxxxx'x First Trigger
Valuation Percentage, or Xxxxx'x Second Trigger Valuation Percentage
for such Eligible Collateral or Posted Collateral, respectively, in
each case as set forth in Paragraph 13(b)(ii).
"Value" shall mean, in respect of any date, the related S&P Value,
the related Xxxxx'x First Trigger Value, and the related Xxxxx'x
Second Trigger Value.
[Remainder of this page intentionally left blank]
Table 1
-------------------------------------------- ----------------------------------
Remaining
Weighted Average Life
of Hedge in Years Xxxxx'x First Trigger Factor
-------------------------------------------- ----------------------------------
Equal to or less than 1 0.15%
-------------------------------------------- ----------------------------------
Greater than 1 but less than or equal to 2 0.30%
-------------------------------------------- ----------------------------------
Greater than 2 but less than or equal to 3 0.40%
-------------------------------------------- ----------------------------------
Greater than 3 but less than or equal to 4 0.60%
-------------------------------------------- ----------------------------------
Greater than 4 but less than or equal to 5 0.70%
-------------------------------------------- ----------------------------------
Greater than 5 but less than or equal to 6 0.80%
-------------------------------------------- ----------------------------------
Greater than 6 but less than or equal to 7 1.00%
-------------------------------------------- ----------------------------------
Greater than 7 but less than or equal to 8 1.10%
-------------------------------------------- ----------------------------------
Greater than 8 but less than or equal to 9 1.20%
-------------------------------------------- ----------------------------------
Greater than 9 but less than or equal to 10 1.30%
-------------------------------------------- ----------------------------------
Greater than 10 but less than or equal to 11 1.40%
-------------------------------------------- ----------------------------------
Greater than 11 but less than or equal to 12 1.50%
-------------------------------------------- ----------------------------------
Greater than 12 but less than or equal to 13 1.60%
-------------------------------------------- ----------------------------------
Greater than 13 but less than or equal to 14 1.70%
-------------------------------------------- ----------------------------------
Greater than 14 but less than or equal to 15 1.80%
-------------------------------------------- ----------------------------------
Greater than 15 but less than or equal to 16 1.90%
-------------------------------------------- ----------------------------------
Greater than 16 but less than or equal to 17 2.00%
-------------------------------------------- ----------------------------------
Greater than 17 but less than or equal to 18 2.00%
-------------------------------------------- ----------------------------------
Greater than 18 but less than or equal to 19 2.00%
-------------------------------------------- ----------------------------------
Greater than 19 but less than or equal to 20 2.00%
-------------------------------------------- ----------------------------------
Greater than 20 but less than or equal to 21 2.00%
-------------------------------------------- ----------------------------------
Greater than 21 but less than or equal to 22 2.00%
-------------------------------------------- ----------------------------------
Greater than 22 but less than or equal to 23 2.00%
-------------------------------------------- ----------------------------------
Greater than 23 but less than or equal to 24 2.00%
-------------------------------------------- ----------------------------------
Greater than 24 but less than or equal to 25 2.00%
-------------------------------------------- ----------------------------------
Greater than 25 but less than or equal to 26 2.00%
-------------------------------------------- ----------------------------------
Greater than 26 but less than or equal to 27 2.00%
-------------------------------------------- ----------------------------------
Greater than 27 but less than or equal to 28 2.00%
-------------------------------------------- ----------------------------------
Greater than 28 but less than or equal to 29 2.00%
-------------------------------------------- ----------------------------------
Greater than 29 2.00%
-------------------------------------------- ----------------------------------
Table 2
-------------------------------------------- ----------------------------------
Remaining
Weighted Average Life
of Hedge in Years Xxxxx'x Second Trigger Factor
-------------------------------------------- ----------------------------------
Equal to or less than 1 0.50%
-------------------------------------------- ----------------------------------
Greater than 1 but less than or equal to 2 1.00%
-------------------------------------------- ----------------------------------
Greater than 2 but less than or equal to 3 1.50%
-------------------------------------------- ----------------------------------
Greater than 3 but less than or equal to 4 1.90%
-------------------------------------------- ----------------------------------
Greater than 4 but less than or equal to 5 2.40%
-------------------------------------------- ----------------------------------
Greater than 5 but less than or equal to 6 2.80%
-------------------------------------------- ----------------------------------
Greater than 6 but less than or equal to 7 3.20%
-------------------------------------------- ----------------------------------
Greater than 7 but less than or equal to 8 3.60%
-------------------------------------------- ----------------------------------
Greater than 8 but less than or equal to 9 4.00%
-------------------------------------------- ----------------------------------
Greater than 9 but less than or equal to 10 4.40%
-------------------------------------------- ----------------------------------
Greater than 10 but less than or equal to 11 4.70%
-------------------------------------------- ----------------------------------
Greater than 11 but less than or equal to 12 5.00%
-------------------------------------------- ----------------------------------
Greater than 12 but less than or equal to 13 5.40%
-------------------------------------------- ----------------------------------
Greater than 13 but less than or equal to 14 5.70%
-------------------------------------------- ----------------------------------
Greater than 14 but less than or equal to 15 6.00%
-------------------------------------------- ----------------------------------
Greater than 15 but less than or equal to 16 6.30%
-------------------------------------------- ----------------------------------
Greater than 16 but less than or equal to 17 6.60%
-------------------------------------------- ----------------------------------
Greater than 17 but less than or equal to 18 6.90%
-------------------------------------------- ----------------------------------
Greater than 18 but less than or equal to 19 7.20%
-------------------------------------------- ----------------------------------
Greater than 19 but less than or equal to 20 7.50%
-------------------------------------------- ----------------------------------
Greater than 20 but less than or equal to 21 7.80%
-------------------------------------------- ----------------------------------
Greater than 21 but less than or equal to 22 8.00%
-------------------------------------------- ----------------------------------
Greater than 22 but less than or equal to 23 8.00%
-------------------------------------------- ----------------------------------
Greater than 23 but less than or equal to 24 8.00%
-------------------------------------------- ----------------------------------
Greater than 24 but less than or equal to 25 8.00%
-------------------------------------------- ----------------------------------
Greater than 25 but less than or equal to 26 8.00%
-------------------------------------------- ----------------------------------
Greater than 26 but less than or equal to 27 8.00%
-------------------------------------------- ----------------------------------
Greater than 27 but less than or equal to 28 8.00%
-------------------------------------------- ----------------------------------
Greater than 28 but less than or equal to 29 8.00%
-------------------------------------------- ----------------------------------
Greater than 29 8.00%
-------------------------------------------- ----------------------------------
Table 3
-------------------------------------------- ----------------------------------
Remaining
Weighted Average Life
of Hedge in Years Xxxxx'x Second Trigger Factor
-------------------------------------------- ----------------------------------
Equal to or less than 1 0.65%
-------------------------------------------- ----------------------------------
Greater than 1 but less than or equal to 2 1.30%
-------------------------------------------- ----------------------------------
Greater than 2 but less than or equal to 3 1.90%
-------------------------------------------- ----------------------------------
Greater than 3 but less than or equal to 4 2.50%
-------------------------------------------- ----------------------------------
Greater than 4 but less than or equal to 5 3.10%
-------------------------------------------- ----------------------------------
Greater than 5 but less than or equal to 6 3.60%
-------------------------------------------- ----------------------------------
Greater than 6 but less than or equal to 7 4.20%
-------------------------------------------- ----------------------------------
Greater than 7 but less than or equal to 8 4.70%
-------------------------------------------- ----------------------------------
Greater than 8 but less than or equal to 9 5.20%
-------------------------------------------- ----------------------------------
Greater than 9 but less than or equal to 10 5.70%
-------------------------------------------- ----------------------------------
Greater than 10 but less than or equal to 11 6.10%
-------------------------------------------- ----------------------------------
Greater than 11 but less than or equal to 12 6.50%
-------------------------------------------- ----------------------------------
Greater than 12 but less than or equal to 13 7.00%
-------------------------------------------- ----------------------------------
Greater than 13 but less than or equal to 14 7.40%
-------------------------------------------- ----------------------------------
Greater than 14 but less than or equal to 15 7.80%
-------------------------------------------- ----------------------------------
Greater than 15 but less than or equal to 16 8.20%
-------------------------------------------- ----------------------------------
Greater than 16 but less than or equal to 17 8.60%
-------------------------------------------- ----------------------------------
Greater than 17 but less than or equal to 18 9.00%
-------------------------------------------- ----------------------------------
Greater than 18 but less than or equal to 19 9.40%
-------------------------------------------- ----------------------------------
Greater than 19 but less than or equal to 20 9.70%
-------------------------------------------- ----------------------------------
Greater than 20 but less than or equal to 21 10.00%
-------------------------------------------- ----------------------------------
Greater than 21 but less than or equal to 22 10.00%
-------------------------------------------- ----------------------------------
Greater than 22 but less than or equal to 23 10.00%
-------------------------------------------- ----------------------------------
Greater than 23 but less than or equal to 24 10.00%
-------------------------------------------- ----------------------------------
Greater than 24 but less than or equal to 25 10.00%
-------------------------------------------- ----------------------------------
Greater than 25 but less than or equal to 26 10.00%
-------------------------------------------- ----------------------------------
Greater than 26 but less than or equal to 27 10.00%
-------------------------------------------- ----------------------------------
Greater than 27 but less than or equal to 28 10.00%
-------------------------------------------- ----------------------------------
Greater than 28 but less than or equal to 29 10.00%
-------------------------------------------- ----------------------------------
Greater than 29 10.00%
-------------------------------------------- ----------------------------------
EXHIBIT P
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [each Custodian], [each
Servicer], [each Subservicer] and [each Subcontractor] shall address, at a
minimum, the criteria identified as below as "Applicable Servicing Criteria."
The responsibilities set forth herein may be amended without amending the Trust
Agreement upon mutual agreement among the applicable party requesting such
amendment and the other parties to the Agreement.
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Trustee
or other triggers and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third Trustee
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a N/A back-up servicer for the mortgage loans are
maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the N/A
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate Trustee
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to Trustee
an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows N/A
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Trustee
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Trustee
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Trustee
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Trustee
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number of days
specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Trustee
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Trustee
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business Trustee
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Trustee
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on pool assets is maintained as
required by Custodian the transaction agreements or related
mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by Custodian
the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Trustee
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in N/A
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the N/A
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 N/A
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, N/A
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the N/A
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans N/A
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow N/A
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance N/A
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be N/A
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 N/A
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 N/A
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Trustee, if
Item Trustee, if 1114(a)(1) through (3) or Item 1115 of applicable.
Regulation AB, is maintained applicable. as set forth in
the transaction agreements.
EXHIBIT Q
Additional Form 10-D Disclosure
--------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool
Performance Information
Information included in the Trustee
Distribution Statement
Any information required by 1121 which Depositor
is NOT included on the Distribution
Statement
Item 2: Legal Proceedings
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
Issuing Entity Trustee
Depositor
Depositor Depositor
Trustee Trustee
Custodian Custodian
Sponsors Depositor
1110(b) Originator N/A
Any 1108(a)(2) Servicer (other than the N/A
Trustee)
Any other party contemplated by Depositor
1100(d)(1)
Item 3: Sale of Securities and Use of Depositor
Proceeds
Information from Item 2(a) of Part II
of Form 10-Q:
With respect to any sale of securities
by the sponsors, depositor or issuing
entity, that are backed by the same
asset pool or are otherwise issued by
the issuing entity, whether or not
registered, provide the sales and use
of proceeds information in Item 701 of
Regulation S-K. Pricing information
can be omitted if securities were not
registered.
Item 4: Defaults Upon Senior Trustee
Securities
Information from Item 3 of Part II of
Form 10-Q:
Report the occurrence of any Event of
Default (after expiration of any grace
period and provision of any required
notice)
Item 5: Submission of Matters to a Trustee
Vote of Security Holders
Information from Item 4 of Part II of
Form 10-Q
Item 6: Significant Obligors of Pool N/A
Assets
Item 1112(b) - Significant Obligor
Financial Information*
*This information need only be
reported on the Form 10-D for the
distribution period in which updated
information is required pursuant to
the Item.
Item 7: Significant Enhancement
Provider Information
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
Determining applicable disclosure Depositor
threshold
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
Item 1115(b) - Derivative Counterparty
Financial Information*
Determining current maximum probable Depositor
exposure
Determining current significance Depositor
percentage
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
*This information need only be
reported on the Form 10-D for the
distribution period in which updated
information is required pursuant to
the Items.
Item 8: Other Information
Disclose any information required to Any party to the Agreement
be reported on Form 8-K during the responsible for the applicable Form 8-K
period covered by the Form 10-D but Disclosure item
not reported
Item 9: Exhibits
Distribution Statement to Trustee
Certificateholders
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
EXHIBIT R
Additional Form 10-K Disclosure
--------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 9B: Other Information Any party to this Agreement
responsible for disclosure items on
Disclose any information required to Form 8-K
be reported on Form 8-K during the
fourth quarter covered by the Form
10-K but not reported
Item 15: Exhibits, Financial Trustee
Statement Schedules Depositor
Reg AB Item 1112(b): Significant
Obligors of Pool Assets
Significant Obligor Financial N/A
Information*
*This information need only be
reported on the Form 10-K if updated
information is required pursuant to
Item 1112(b).
Reg AB Item 1114(b)(2): Credit
Enhancement Provider Financial
Information
Determining applicable disclosure Depositor
threshold
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be
reported on the Form 10-K if updated
information is required pursuant to
the Item.
Reg AB Item 1115(b): Derivative
Counterparty Financial Information
Determining current maximum probable Depositor
exposure
Determining current significance Depositor
percentage
Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be
reported on the Form 10-K if updated
information is required pursuant to
the Item.
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
Issuing Entity Trustee and Depositor
Depositor Depositor
Custodian Custodian
Trustee Trustee
Sponsors Depositor
Servicer Servicer
1110(b) Originator Depositor
Any 1108(a)(2) Servicer (other than Servicer
the Servicer or Trustee)
Any other party contemplated by Depositor
1100(d)(1)
Reg AB Item 1119: Affiliations and
Relationships
Whether (a) the Sponsors (Seller), Depositor as to (a)
Depositor or Issuing Entity is an Custodian as to (a)
affiliate of the following parties,
and (b) to the extent known and
material, any of the following parties
are affiliated with one another:
Servicer Servicer
Trustee Trustee as to (a)
Any other 1108(a)(3) servicer Servicer
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
Whether there are any "outside the Depositor as to (a)
ordinary course business arrangements"
other than would be obtained in an
arm's length transaction between (a)
the Sponsors (Seller), Depositor or
Issuing Entity on the one hand, and
(b) any of the following parties (or
their affiliates) on the other hand,
that exist currently or within the
past two years and that are material
to a Certificateholder's understanding
of the Certificates:
Servicer Servicer
Trustee Depositor
Any other 1108(a)(3) servicer Servicer
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
Whether there are any specific Depositor as to (a)
relationships involving the
transaction or the pool assets between
(a) the Sponsors (Seller), Depositor
or Issuing Entity on the one hand, and
(b) any of the following parties (or
their affiliates) on the other hand,
that exist currently or within the
past two years and that are material:
Servicer Servicer
Trustee Depositor
Any other 1108(a)(3) servicer Servicer
Any 1110 Originator Depositor
Any 1112(b) Significant Obligor Depositor
Any 1114 Credit Enhancement Provider Depositor
Any 1115 Derivative Counterparty Depositor
Provider
Any other 1101(d)(1) material party Depositor
EXHIBIT S
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
--------------------------------------------------------------------------------
Item 1.01- Entry into a Material The party to this Agreement entering
Definitive Agreement into such material definitive
agreement
Disclosure is required regarding entry
into or amendment of any definitive
agreement that is material to the
securitization, even if depositor is
not a party.
Examples: servicing agreement,
custodial agreement.
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting termination of a material
definitive agreement
Disclosure is required regarding
termination of any definitive
agreement that is material to the
securitization (other than expiration
in accordance with its terms), even if
depositor is not a party.
Examples: servicing agreement,
custodial agreement.
Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the
bankruptcy or receivership, with
respect to any of the following:
Sponsors (Seller) Depositor
Depositor Depositor
Trustee Trustee
Significant Obligor Depositor
Credit Enhancer (10% or more) Depositor
Derivative Counterparty Depositor
Item 2.04- Triggering Events that Depositor
Accelerate or Increase a Direct Trustee
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
Includes an early amortization,
performance trigger or other event,
including event of default, that would
materially alter the payment
priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events
other than waterfall triggers which
are disclosed in the monthly
statements to the certificateholders.
Item 3.03- Material Modification to Trustee/Depositor
Rights of Security Holders
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders,
including the Trust Agreement.
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
Disclosure is required of any
amendment "to the governing documents
of the issuing entity."
Item 6.01- ABS Informational and Depositor
Computational Material
Item 6.02- Change of Servicer or Depositor /Trustee
Trustee
Requires disclosure of any removal,
replacement, substitution or addition
of any master servicer, affiliated
servicer, other servicer servicing 10%
or more of pool assets at time of
report, other material servicers or
trustee.
Reg AB disclosure about any new Depositor
servicer or master servicer is also
required.
Reg AB disclosure about any new Trustee
Trustee is also required.
Item 6.03- Change in Credit Depositor/Trustee
Enhancement or External Support
Covers termination of any enhancement
in manner other than by its terms, the
addition of an enhancement, or a
material change in the enhancement
provided. Applies to external credit
enhancements as well as derivatives.
Reg AB disclosure about any new Depositor
enhancement provider is also required.
Item 6.04- Failure to Make a Required Trustee
Distribution
Item 6.05- Securities Act Updating Depositor
Disclosure
If any material pool characteristic
differs by 5% or more at the time of
issuance of the securities from the
description in the final prospectus,
provide updated Reg AB disclosure
about the actual asset pool.
If there are any new servicers or Depositor
originators required to be disclosed
under Regulation AB as a result of the
foregoing, provide the information
called for in Items 1108 and 1110
respectively.
Item 7.01- Reg FD Disclosure Depositor
Item 8.01- Other Events Depositor
Any event, with respect to which
information is not otherwise called
for in Form 8-K, that the registrant
deems of importance to
certificateholders.
Item 9.01- Financial Statements and Party responsible for
Exhibits reporting/disclosing the financial
statement or exhibit
EXHIBIT T
ADDITIONAL DISCLOSURE NOTIFICATION
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [_________]
**SEND VIA EMAIL TO XXXxx.Xxxxxxxxxxxxx@xx.xxx AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW
Deutsche Bank National Trust Company, as trustee
0000 Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Email: XXXxx.Xxxxxxxxxxxxx@xx.xxx
Attn.: Trust & Securities Services- BCAP 2007-AA2
Re: RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 8.15 of the Trust Agreement, dated as of
March 1, 2007, between BCAP LLC, as depositor, Xxxxx Fargo Bank, N.A., as
custodian and Deutsche Bank National Trust Company, as trustee. The undersigned,
as [____], hereby notifies you that certain events have come to our attention
that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[____], phone number: [____]; email address: [____].
[NAME OF PARTY],
as [role]
By:____________________________________
Name:
Title:
EXHIBIT U
AMENDMENT REG AB
TO THE MASTER MORTGAGE LOAN PURCHASE AGREEMENT AND THE SERVICING AGREEMENT
This is Amendment Reg AB ("Amendment Reg AB"), dated as of August
30, 2006, by and between Barclays Bank PLC (the "Purchaser") and Countrywide
Home Loans, Inc. (the "Company"), to that certain Master Mortgage Loan Purchase
Agreement (the "Purchase Agreement") and that certain Servicing Agreement (the
"Servicing Agreement"), each dated as of August 30, 2006 and each by and between
the Company and the Purchaser (as amended, modified or supplemented, the
"Existing Agreements").
W I T N E S S E T H:
WHEREAS, the Company and the Purchaser have agreed, subject to the
terms and conditions of this Amendment Reg AB that the Existing Agreements be
amended to reflect agreed upon revisions to the terms of the Existing
Agreements.
Accordingly, the Company and the Purchaser hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Agreements are hereby amended as follows:
1. Capitalized terms used herein but not otherwise defined shall
have the meanings set forth in the Existing Agreements. The Existing Agreements
are hereby amended by adding the following definitions in their proper
alphabetical order:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2(g)(i)(A)(1).
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Exchange Act. The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were either (x) originated pursuant to an agreement between the
Company and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by the Company ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines or (y)
individually re-underwritten by the Company to the Designated Guidelines at the
time such Mortgage Loans were acquired by the Company; (ii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iii) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that either Persons from which it
purchased mortgage loans properly applied the underwriting criteria designated
by the Company or the Mortgage Loans purchased by the Company substantially
comply with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: An agreement or agreements entered into by
the Company and the Purchaser and/or certain third parties in connection with a
Reconstitution with respect to any or all of the Mortgage Loans serviced under
the Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.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.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction subject to Regulation AB
involving either (1) a sale or other transfer of some or all of the Mortgage
Loans directly or indirectly to an issuing entity in connection with an issuance
of publicly offered, rated mortgage-backed securities or (2) an issuance of
publicly offered, rated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2(c)(iii).
Servicing Criteria: The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in
Item 1105.
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 Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB; provided, however, that the term "Subservicer" shall
not include any master servicer, or any special servicer engaged at the request
of a Depositor, Purchaser or investor in a Securitization Transaction, nor any
"back-up servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
2. The Purchaser and the Company agree that the Existing Agreements
is hereby amended by adding the following provisions:
(a) Intent of the Parties; Reasonableness. The Purchaser and the
Company acknowledge and agree that the purpose of Article 2 of this Agreement is
to facilitate compliance by the Purchaser and any Depositor with the provisions
of Regulation AB and related rules and regulations of the Commission. Neither
the Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Company acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, and agrees to negotiate in good faith with the
Purchaser or any Depositor with regard to any reasonable requests for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary to permit
the Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, and any parties or items
identified in writing by the Purchaser, including, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans necessary in order to effect such compliance.
The Purchaser agrees that it will cooperate with the Company and
provide sufficient and timely notice of any information requirements pertaining
to a Securitization Transaction. The Purchaser will make all reasonable efforts
to contain requests for information, reports or any other materials to items
required for compliance with Regulation AB, and shall not request information
which is not required for such compliance.
(b) Additional Representations and Warranties of the Company.
(i) The Company shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 2(c) that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Company
is not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Company; (ii) the Company has not been
terminated as servicer in a residential mortgage loan securitization, either due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported by the Company; (iv) no
material changes to the Company's policies or procedures with respect to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Company's financial
condition that could have a material adverse effect on the performance by the
Company of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Company, any Subservicer or any
Third-Party Originator; and (vii) there are no affiliations, relationships or
transactions required to be disclosed under Item 1119 between the Company and
any of the parties listed in Section 2(c)(i)(D)(1)-(9) which are identified in
writing by the Purchaser or Depositor in advance of the Securitization
Transaction pursuant to Section 2(c)(i)(D) of this Amendment Reg AB.
(ii) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Section 2(c), the Company shall, within ten Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (i) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
(c) Information to Be Provided by the Company. In connection with
any Securitization Transaction the Company shall (1) within ten Business Days
following request by the Purchaser or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause each Third-Party Originator and
each Subservicer to provide), in writing reasonably required for compliance with
Regulation AB, the information and materials specified in paragraphs (i), (ii),
(iii) and (vi) of this Section 2(c), and (2) as promptly as practicable
following notice to or discovery by the Company, provide to the Purchaser and
any Depositor (as required by Regulation AB) the information specified in
paragraph (iv) of this Section.
(i) If so requested by the Purchaser or any Depositor, the Company
shall provide such information regarding (x) the Company, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent, if applicable), or (y) as applicable, each Third-Party
Originator, and (z) as applicable, each Subservicer, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105 (subject to paragraph (b)
below), 1110, 1117 and 1119 of Regulation AB. Such information shall include, at
a minimum:
(A) the originator's form of organization;
(B) to the extent material, a description of the originator's
origination program and how long the originator has been engaged in
originating residential mortgage loans, which description shall
include a discussion of the originator's experience in originating
mortgage loans of a similar type as the Mortgage Loans; if material,
information regarding the size and composition of the originator's
origination portfolio; and information that may be material to an
analysis of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other
information as the Purchaser or any Depositor may reasonably request
for the purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a brief description of any material legal or governmental
proceedings pending (or known to be contemplated by a governmental
authority) against the Company, each Third-Party Originator, if
applicable, and each Subservicer; and
(D) a description of any affiliation or relationship between
the Company, each Third-Party Originator, if applicable, each
Subservicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Company by the
Purchaser or any Depositor in writing within ten days in advance of
such Securitization Transaction:
(1) any servicer;
(2) any trustee;
(3) any originator;
(4) any significant obligor;
(5) any enhancement or support provider; and
(6) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, and required
by Regulation AB, the Company shall provide (or, as applicable, cause each
Third-Party Originator to provide) Static Pool Information with respect to the
mortgage loans (of a similar type as the Mortgage Loans, as reasonably
identified by the Purchaser as provided below) originated by (a) the Company, if
the Company is an originator of Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent, if applicable), and/or (b) as
applicable, each Third-Party Originator. Such Static Pool Information shall be
prepared by the Company (or, if applicable, the Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is reasonably
available to the Company (or Third-Party Originator, as applicable) Static Pool
Information with respect to more than one mortgage loan type, the Purchaser or
any Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The content of such
Static Pool Information may be in the form customarily provided by the Company,
and need not be customized for the Purchaser or any Depositor. Such Static Pool
Information for each vintage origination year or prior securitized pool, as
applicable, shall be presented in increments no less frequently than quarterly
over the life of the mortgage loans included in the vintage origination year or
prior securitized pool. The most recent periodic increment must be as of a date
no later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an electronic
format that provides a permanent record of the information provided, such as a
portable document format (pdf) file, or other such electronic format mutually
agreed upon by the Purchaser and the Company; provided, however, that to the
extent the Company provides Static Pool Information via weblink, the Company
agrees to comply with the applicable provisions of Rule 312(a)(2), (a)(3), and
(a)(4) of Regulation S-T under the Act.
Promptly following notice or discovery of a material error, as
determined in the Company's judgment, in Static Pool Information
provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided
pursuant to such paragraph) during the applicable offering period
for the securities, the Company shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the
same format in which Static Pool Information was previously provided
to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company
shall provide (or, as applicable, cause each Third-Party Originator
to provide), at the expense of the requesting party (to the extent
of any additional incremental expense associated with delivery
pursuant to this Agreement), procedures letters of certified public
accountants pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1,
2006 or, in the case of Static Pool Information with respect to the
Company's or, if applicable, Third-Party Originator's originations
or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such
statements and letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate,
which shall be limited to any Sponsor, any Depositor, any broker
dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction or any other party that
is reasonably and customarily entitled to receive such statements
and letters in a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by
the addressees designated by the Purchaser or such Depositor.
(iii) If reasonably requested by the Purchaser or any Depositor, the
Company shall provide such information regarding the Company, as servicer of the
Mortgage Loans, and each Subservicer (each of the Company and each Subservicer,
for purposes of this paragraph, a "Servicer"), as is reasonably requested for
the purpose of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion of
the Servicer's experience in servicing assets of any type as
well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and information
on factors related to the Servicer that may be material, in
the reasonable determination of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving
the Servicer have defaulted or experienced an early
amortization or other performance triggering event
because of servicing during the three-year period
immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreements
for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that an
adverse financial event or circumstance involving the Servicer
could have a material adverse effect on the performance by the
Company of its servicing obligations under this Agreement or
any Reconstitution Agreement;
(E) information regarding advances made by the Servicer
on the Mortgage Loans and the Servicer's overall servicing
portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period,
or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as
required, and the reasons for such failure to advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the Mortgage
Loans;
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the effect
of any grace period, re-aging, restructuring, partial payments
considered current or other practices with respect to
delinquency and loss experience.
(iv) For the purpose of satisfying its reporting obligation under
the Exchange Act with respect to any class of asset-backed securities, the
Company shall (or shall cause each Subservicer and, if applicable, any
Third-Party Originator to) (a) provide prompt notice to the Purchaser, any
Master Servicer and any Depositor in writing of (1) any merger, consolidation or
sale of substantially all of the assets of the Company, (2) the Company's entry
into an agreement with a Subservicer to perform or assist in the performance of
any of the Company's obligations under the Agreement or any Reconstitution
Agreement that qualifies as an "entry into a material definitive agreement"
under Item 1.01 of the form 8-K, (3) any Event of Default under the terms of the
Agreement or any Reconstitution Agreement to the extent not known by such
Purchaser, Master Servicer or Depositor and (4) any material litigation or
governmental proceedings involving the Company, any Subservicer or any Third
Party Originator.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or subservicer under this Agreement or any applicable
Reconstitution Agreement related thereto by any Person (i) into which the
Company or such Subservicer may be merged or consolidated, or (ii) which may be
appointed as a successor to the Company or any Subservicer, the Company shall
provide to the Purchaser, the Master Servicer and any Depositor, at least 15
calendar days prior to the effective date of such succession or appointment, (x)
written notice to the Purchaser and any Depositor of such succession or
appointment and (y) in writing, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(vi) The Company shall provide to the Purchaser and any Depositor a
description of any affiliation or relationship required to be disclosed under
Item 1119 of Regulation AB between the Company and any of the parties listed in
Items 1119 (a)(1)-(6) of Regulation AB that develops following the closing date
of a Securitization Transaction (other than an affiliation or relationship that
the Purchaser, the Depositor or the issuing entity is required to disclose under
Item 1119 of Regulation AB) no later than 15 calendar days prior to the date the
Depositor is required to file its Form 10 K disclosing such affiliation or
relationship. For purposes of the foregoing, the Company (1) shall be entitled
to assume that the parties to the Securitization Transaction with whom
affiliations or relations must be disclosed are the same as on the closing date
if it provides a written request (which may be by e-mail) to the Depositor or
Master Servicer, as applicable, requesting such confirmation and either obtains
such confirmation or receives no response within three (3) Business Days, (2)
shall not be obligated to disclose any affiliations or relationships that may
develop after the closing date for the Securitization Transaction with any
parties not identified to the Company pursuant to clause (D) of paragraph (i) of
this Section 2(c), and (3) shall be entitled to rely upon any written
identification of parties provided by the Depositor, the Purchaser or any master
servicer.
(vii) Not later than ten days prior to the deadline for the filing
of any distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the Company or
any Subservicer, the Company or such Subservicer, as applicable, shall, to the
extent the Company or such Subservicer has knowledge, provide to the party
responsible for filing such report (including, if applicable, the Master
Servicer) notice of the occurrence of any of the following events 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 :
(a) any material modifications, extensions or waivers of
Mortgage Loan terms, fees, penalties or payments during the
distribution period;
(b) material breaches of Mortgage Loan representations or
warranties or transaction covenants under the Existing Agreements,
as amended herein; and
(c) information regarding any Mortgage Loan changes (such as,
additions, substitutions or repurchases) and with respect to a
mortgage loan that the Company has substituted as a replacement for
a Mortgage Loan ("Substituted Mortgage Loan"), the origination,
underwriting and, if applicable, other Company criteria for the
acquisition or selection of such Substituted Mortgage Loan.
(d) Servicer Compliance Statement. On or before March 5 of
each calendar year, commencing in 2007, the Company shall deliver to
the Purchaser, the Master Servicer and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed
by an authorized officer of the Company, to the effect that (i) a
review of the Company's servicing activities during the immediately
preceding calendar year (or applicable portion thereof) and of its
performance under the servicing provisions of this Agreement and any
applicable Reconstitution Agreement during such period has been made
under such officer's supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Company has fulfilled
all of its servicing obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known
to such officer and the nature and the status thereof.
(e) Report on Assessment of Compliance and Attestation.
(i) On or before March 5 of each calendar year, commencing in 2007,
the Company shall:
(A) deliver to the Purchaser, the Master Servicer
and any Depositor a report regarding the Company's
assessment of compliance with the Servicing Criteria
during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Purchaser and such Depositor and signed
by an authorized officer of the Company, and shall
address each of the applicable Servicing Criteria
specified on Exhibit A hereto (wherein "Investor" shall
mean the Master Servicer);
(B) deliver to the Purchaser, the Master Servicer
and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the
assessment of compliance made by the Company and
delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act;
(C) if required by Regulation AB, cause each
Subservicer and each Subcontractor determined by the
Company pursuant to Section 2(f)(ii) to be
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB (each, a
"Participating Entity"), to deliver to the Purchaser,
the Master Servicer and any Depositor an assessment of
compliance and accountants' attestation as and when
provided in paragraphs (i) and (ii) of this Section
2(e); and
(D) deliver or cause each Subservicer and
Subcontractor described in Section 2(e)(i)(C) above to
deliver to the Purchaser, the Master Servicer, Depositor
or any other Person that will be responsible for signing
the certification (a "Sarbanes Certification") required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect
to a Securitization Transaction, a certification signed
by an appropriate officer of the Company, in the form
attached hereto as Exhibit B; provided that such
certification delivered by the Company may not be filed
as an exhibit to, or included in, any filing with the
Commission.
The Company acknowledges that the party identified in clause (i)(D)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
(ii) Each assessment of compliance provided by a Subservicer
pursuant to Section 2(e)(i)(A) shall address each of the applicable Servicing
Criteria specified on Exhibit A hereto (wherein "Investor" shall mean the Master
Servicer) delivered to the Purchaser concurrently with the execution of this
Agreement or, in the case of a Subservicer subsequently appointed as such, on or
prior to the date of such appointment. An assessment of compliance provided by a
Participating Entity pursuant to Section 2(e)(i)(C) need not address any
elements of the Servicing Criteria other than those specified by the Company
pursuant to Section 2(f).
If reasonably requested by the Purchaser or the Master Servicer, the
Company shall provide to the Purchaser or the Master Servicer, evidence of the
authorization of the person signing any certification or statement provided
pursuant to this Amendment Reg AB.
(f) Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
this Agreement or any related Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Subsection (f). The
Company shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Company as
servicer under this Agreement or any related Reconstitution Agreement unless the
Company complies with the provisions of paragraph (ii) of this Subsection (f).
(i) It shall not be necessary for the Company to seek the consent of
the Purchaser, the Master Servicer or any Depositor to the utilization of any
Subservicer. If required by Regulation AB, after reasonable notice from the
Purchaser of the parties involved in the Purchaser's Securitization Transaction,
the Company shall cause any Subservicer used by the Company (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Sections 2(b), 2(c)(iii), 2(c)(v), 2(d),
and 2(e) of this Agreement, and to provide the information required with respect
to such Subservicer under Section 2(c)(iv) of this Agreement. The Company shall
be responsible for obtaining from each Subservicer and delivering to the
Purchaser and any Depositor any servicer compliance statement required to be
delivered by such Subservicer under Section 2(d), any assessment of compliance
and attestation required to be delivered by such Subservicer under Section 2(e)
and any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 2(e) as and
when required to be delivered.
(ii) It shall not be necessary for the Company to seek the consent
of the Purchaser or any Depositor to the utilization of any Subcontractor. If
required by Regulation AB, after reasonable notice from the Purchaser of the
parties involved in the Purchaser's Securitization Transaction, the Company
shall promptly upon request provide to the Purchaser or any Depositor (or any
designee of the Depositor, such as a master servicer or administrator) of the
role and function of each Subcontractor utilized by the Company or any
Subservicer, specifying (A) the identity of each such Subcontractor, (B) which
(if any) of such Subcontractors are Participating Entities, and (C) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Participating Entity identified pursuant to clause
(B)of this paragraph.
The Company shall cause any such Participating Entity used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Section 2(e) of this Agreement. The
Company shall be responsible for obtaining from each Participating Entity and
delivering to the Purchaser, the Master Servicer and any Depositor any
assessment of compliance and attestation and certificate required to be
delivered by such Participating Entity under Section 2(e), in each case as and
when required to be delivered.
(g) Indemnification; Remedies.
(i) The Company shall indemnify the Purchaser and the Depositor and
each of the following parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person responsible for the execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each Person who controls any of such parties (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act); and the respective present and former directors, officers and employees of
each of the foregoing and shall 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:
(A)(1) any untrue statement of a material fact contained
or alleged to be contained in any information, report,
certification or other material provided in written or
electronic form under this Amendment Reg AB by or on behalf of
the Company (including any Static Pool Information provided by
the Company pursuant to Section 2(c)(ii)), or provided under
this Amendment Reg AB by or on behalf of any Subservicer,
Participating Entity or, if applicable, Third-Party Originator
(collectively, the "Company Information"), or (2) the omission
or alleged omission to state in the Company Information a
material fact required to be stated in the Company Information
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (2)
of this paragraph shall be construed solely by reference to
the Company Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company Information
or any portion thereof is presented together with or
separately from such other information;
(B) any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or
other material when and as required under this Amendment Reg
AB, including any failure by the Company to identify pursuant
to Section 2(f)(ii) any Participating Entity; or
(C) any breach by the Company of a representation or
warranty set forth in Section 2(b)(i) or in a writing
furnished pursuant to Section 2(b)(ii) and made as of a date
prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a
representation or warranty in a writing pursuant to under
Section 2(b)(ii) to the extent made as of a date subsequent to
such closing date; or
(D) the Company's failure to comply with applicable
provisions of Rule 312(a)(2), (a)(3), and (a)(4) of Regulation
S-T under the Act.
In the case of any failure of performance described in clause (i)(B)
of this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator.
(ii) (A) Any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Amendment Reg AB, which continues unremedied for three
Business Days after receipt by the Company and the applicable Subservicer,
Subcontractor, or Third-Party Originator, so long as their addresses for notices
have been provided in writing previously to the Purchaser or the Depositor, of
written notice of such failure from the Purchaser or Depositor shall, except as
provided in clause (B) of this paragraph, constitute an Event of Default with
respect to the Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable Reconstitution Agreement
related thereto without payment (notwithstanding anything in this Agreement or
any applicable Reconstitution Agreement related thereto to the contrary) of any
compensation to the Company (and if the Company is servicing any of the Mortgage
Loans in a Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization Transaction);
provided, however it is understood that the Company shall remain entitled to
receive reimbursement for all unreimbursed Monthly Advances and Servicing
Advances made by the Company under this Agreement and/or any applicable
Reconstitution Agreement. Notwithstanding anything to the contrary set forth
herein, to the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(B) Any failure by the Company, any Subservicer or any
Participating Entity to deliver any information, report,
certification or accountants' letter required under Regulation
AB when and as required under Section 2(d) or 2(e), including
any failure by the Company to identify a Participating Entity,
which continues unremedied for nine calendar days after
receipt by the Company of written notice of such failure from
the Purchaser or Depositor (which failure shall continue no
later than March 15th of each year ("Due Date") with respect
to Section 2(d) or 2(e); provided, however the Company shall
have received such written notice of such failure at least 5
Business Days prior to such Due Date) shall constitute an
Event of Default with respect to the Company under this
Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in
its sole discretion to terminate the rights and obligations of
the Company as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary)
of any compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to
the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following
termination of the Company as servicer, such provision shall
be given effect.
(C) The Company shall promptly reimburse the Purchaser
(or any affected designee of the Purchaser, such as a master
servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such
Depositor as such are incurred, in connection with the
termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights
the Company, the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or
injunctive relief.
(iii) The Purchaser agrees to indemnify and hold harmless the
Company, any Subservicer, any Participating Entity, and, if applicable, any
Third-Party Originator, each Person who controls any of such parties (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the respective present and former directors, officers and employees of each
of the foregoing 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 untrue statement or alleged untrue statement of any material fact
contained in any filing with the Commission or the omission or alleged omission
to state in any filing with the Commission a material fact required to be stated
or necessary to be stated in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement, alleged untrue
statement, omission, or alleged omission relates to any filing with the
Commission other than the Company Information. [Still open]
(iv) The indemnification obligations provided for in Section 2(g)
shall survive the termination of this Amendment Reg AB or the termination of any
party to this Amendment Reg AB.
3. Notwithstanding any other provision of this Amendment Reg AB, the
Company shall seek the consent of the Purchaser for the utilization of all
Subservicers and Participating Entities, when required by and in accordance with
the terms of the Existing Agreements.
4. The Servicing Agreement is hereby amended by adding the Exhibit
attached hereto as Exhibit A to the end thereto. References in this Amendment
Reg AB to "this Agreement" or words of similar import (including indirect
references to the Agreement) shall be deemed to be references to the Existing
Agreements as amended by this Amendment Reg AB. Except as expressly amended and
modified by this Amendment Reg AB, the Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. In the event of a
conflict between this Amendment Reg AB and any other document or agreement,
including without limitation the Existing Agreements, this Amendment Reg AB
shall control.
5. This Amendment Reg AB may be executed in one or more counterparts
and by different parties hereto on separate counterparts, each of which, when so
executed, shall constitute one and the same agreement. This Amendment Reg AB
will become effective as of the date first mentioned above. This Amendment Reg
AB shall bind and inure to the benefit of and be enforceable by the Company and
the Purchaser and the respective permitted successors and assigns of the Company
and the successors and assigns of the Purchaser.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
BARCLAYS BANK PLC
Purchaser
By:____________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
Company
By:____________________________________
Name:
Title:
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name
of Subservicer] shall address, at a minimum, the applicable criteria identified
below as "Applicable Servicing Criteria":
Applicable Servicing
Servicing Criteria Criteria
------------------ --------------------
Reference Criteria
--------- --------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other
triggers and events of default in accordance with the transaction agreements. 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
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements. X
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements. 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
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 overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the X
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a foreign
financial institution means a foreign financial institution that meets the X
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and related bank
clearing accounts. These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement cutoff date, or such
other number of days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These reconciling items are X
resolved within 90 calendar days of their original identification, or such
other number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the X
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the transaction
agreements. 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 X
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements. X
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the
transaction agreements or related mortgage loan documents. X
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the
transaction agreements X
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 mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number
of days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage X
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid principal balance. X
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and related
pool asset documents. X
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable)
are initiated, conducted and concluded in accordance with the timeframes or
other requirements established by the transaction agreements. X
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed X
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with
variable rates are computed based on the related mortgage loan documents. X
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A)
such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified X
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, X
or such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission. X
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 X
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.
[NAME OF COMPANY] [NAME OF SUBSERVICER]
Date:_______________________________________
By:______________________________________
Name:
Title:
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor],
[Master Servicer], [Securities Administrator] or [Trustee], and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator] or
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
or [Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement; and
[Intentionally Left Blank]
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Subservicer and
Participating Entity pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:__________________________________
By:____________________________________
Name:
Title:
EXHIBIT V
REPRESENTATION LETTER
SIDE LETTER
THIS AGREEMENT, dated as of March 29, 2007 (the "Agreement") is
entered into between Barclays Bank PLC ("BBPLC") and BCAP LLC (the "Depositor").
RECITALS
WHEREAS, reference is made to the Trust Agreement, dated as of March
1, 2007 (the "Trust Agreement"), among the Depositor, Deutsche Bank National
Trust Company, as trustee (the "Trustee"), and Xxxxx Fargo Bank, N. A., as
custodian.
WHEREAS, pursuant to the Master Mortgage Loan Purchase Agreement,
dated as of August 30, 2006, between BBPLC, as purchaser, and Countrywide Home
Loans, Inc. ("CHL"), as seller (the "Countrywide Agreement"), CHL has made
representations and warranties regarding the Group I Mortgage Loans (as defined
in the Trust Agreement) as of the date specified therein (the "Countrywide
Original Sale Date").
WHEREAS, pursuant to the Mortgage Loan Purchase Agreement, dated as
of February 1, 2007, between Xxxxxx Funding LLC ("Xxxxxx"), as purchaser, and
Xxxxx Fargo Bank, N. A. ("Xxxxx Fargo"), as seller, Xxxxx Fargo has made
representations and warranties regarding the Group II Mortgage Loans (as defined
in the Trust Agreement) as of the date specified therein (the "Xxxxx Fargo
Original Sale Date").
WHEREAS, pursuant to the Xxxx of Sale, dated as of March 29, 2007
(the "BPPLC Xxxx of Sale"), between the Depositor and BPPLC and the Xxxx of
Sale, dated as of March 29, 2007 (the "Xxxxxx Xxxx of Sale"), between the
Depositor and Xxxxxx, BPPLC and Xxxxxx sold the Mortgage Loans to the Depositor.
WHEREAS, BBPLC is the administrator of Xxxxxx.
NOW, THEREFORE, the parties hereto agree as follows:
Definitions
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Trust Agreement.
Representations and Warranties of BBPLC
With respect to the Group I Mortgage Loans, BBPLC hereby represents
to the Depositor that, to the best of its knowledge, no event has occurred since
the applicable Countrywide Original Sale Date that would render the
representations and warranties made by CHL in paragraphs (a) through (j), (l),
(m), (n), (o) (aa), (bb) and (mm) of Section 3.02 of the Countrywide Agreement
to be untrue in any material respect as of the Closing Date.
With respect to the Group II Mortgage Loans, BBPLC hereby represents
to the Depositor that, to the best of its knowledge, no event has occurred since
the applicable Xxxxx Fargo Original Sale Date that would render the
representations and warranties made by Xxxxx Fargo in paragraphs (a) through
(j), (l), (m), (n), (o), (aa), (bb) and (mm) of Section 3.02 of the Xxxxx Fargo
Agreement to be untrue in any material respect as of the Closing Date.
In addition, BBPLC hereby represents to the Depositor that:
(i) No Mortgage Loan is a Mortgage Loan categorized as "High Cost"
or "Covered" pursuant to Appendix E of Standard & Poor's Glossary. No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act.
(ii) Each loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory and abusive lending laws.
Repurchase of Mortgage Loans
In the event of a breach by BBPLC of its representations and
warranties above that materially and adversely affects Certificateholders, BBPLC
shall repurchase each such Mortgage Loan within 60 days of the earlier of
discovery or receipt of notice of breach with respect to each such Mortgage Loan
at the Repurchase Price set forth in the Trust Agreement.
Third-Party Beneficiary
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Trustee and its successors and assigns under the Trust Agreement shall be a
third-party beneficiary to the provisions of this Agreement, and shall be
entitled to rely upon and directly to enforce such provisions of this Agreement,
except as expressly limited by the terms hereof. Except as expressly stated
otherwise herein or in the Trust Agreement, any right of the Trustee to direct,
appoint, consent to, approve of, or take any action under this Agreement, shall
be a right exercised by the Trustee in its sole and absolute discretion.
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.
Counterparts
This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
Amendments
This Agreement may be amended from time to time by BBPLC and the
Depositor, with the prior written consent of the Trustee.
[SIGNATURE PAGE FOLLOWS]
Executed as of the day and year first above written.
XXXXXXX BANK PLC
By:____________________________________
Name:
Title:
BCAP LLC
By:____________________________________
Name:
Title:
