STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., as Credit Risk Manager, and U.S. BANK NATIONAL ASSOCIATION, as Trustee TRUST AGREEMENT Dated as of...
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.,
as
Credit Risk Manager,
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
___________________________
Dated
as
of February 1, 2007
___________________________
STRUCTURED
ASSET SECURITIES CORPORATION
MORTGAGE
LOAN TRUST 2007-BC2
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2007-BC2
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
||
|
Section
1.01.
|
Definitions.
|
6
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
61
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
61
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
||
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
62
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
66
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
68
|
|
Section
2.04.
|
Discovery
of Breach.
|
69
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
70
|
|
Section
2.06.
|
Grant
Clause.
|
71
|
|
ARTICLE
III THE CERTIFICATES
|
||
|
Section
3.01.
|
The
Certificates.
|
73
|
|
Section
3.02.
|
Registration.
|
74
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
74
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
81
|
|
Section
3.05.
|
Replacement
of Certificates.
|
81
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
81
|
|
Section
3.07.
|
Temporary
Certificates.
|
81
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
82
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
83
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
||
|
Section
4.01.
|
Collection
Account.
|
84
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
86
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
89
|
|
Section
4.04.
|
Certificate
Account.
|
93
|
|
Section
4.05.
|
[Reserved].
|
94
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
||
|
Section
5.01.
|
Distributions
Generally.
|
94
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
95
|
|
Section
5.03.
|
Allocation
of Losses.
|
109
|
|
Section
5.04.
|
Advances
by Master Servicer, Servicers and Trustee.
|
110
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
111
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
111
|
|
Section
5.07.
|
Supplemental
Interest Trust.
|
111
|
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
114
|
|
Section
5.09.
|
Termination
Receipts.
|
115
|
|
Section
5.10.
|
Final
Maturity Reserve Trust.
|
116
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
|
||
|
Section
6.01.
|
Duties
of Trustee.
|
117
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee.
|
120
|
|
Section
6.03.
|
Trustee
Not Liable for Certificates.
|
121
|
|
Section
6.04.
|
Trustee
May Own Certificates.
|
122
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee.
|
122
|
|
Section
6.06.
|
Resignation
and Removal of Trustee.
|
122
|
|
Section
6.07.
|
Successor
Trustee.
|
123
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee.
|
124
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
125
|
|
Section
6.10.
|
Authenticating
Agents.
|
127
|
|
Section
6.11.
|
Indemnification
of Trustee.
|
128
|
|
Section
6.12.
|
Fees
and Expenses of Trustee and Custodian.
|
128
|
|
Section
6.13.
|
Collection
of Monies.
|
129
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
129
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
134
|
|
Section
6.16.
|
Waiver
of Defaults.
|
134
|
|
Section
6.17.
|
Notification
to Holders.
|
134
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
135
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
135
|
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
142
|
|
Section
6.21.
|
Reporting
Requirements of the Commission.
|
143
|
|
Section
6.22.
|
No
Merger.
|
143
|
|
Section
6.23.
|
Indemnification
by the Trustee.
|
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
||
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
143
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC
1
Uncertificated Regular Interests.
|
147
|
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
149
|
|
Section
7.04.
|
Optional
Repurchase Right.
|
150
|
|
ARTICLE
VIII RIGHTS OF 151CERTIFICATEHOLDERS
|
||
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
150
|
|
Section
8.02.
|
Access
to List of Holders.
|
151
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
151
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER;
CREDIT RISK MANAGER
|
||
|
Section
9.01.
|
Duties
of the Master Servicer.
|
153
|
ii
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
153
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
154
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
154
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
157
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
158
|
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
158
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
159
|
|
Section
9.09.
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
159
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Trustee.
|
160
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
160
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
160
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held
for
Trustee.
|
161
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
163
|
|
Section
9.15.
|
Opinion.
|
165
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
165
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
166
|
|
Section
9.18.
|
Reserved
|
166
|
|
Section
9.19.
|
Custodian
To Retain Possession of Certain Documents.
|
166
|
|
Section
9.20.
|
[Reserved]
|
166
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
166
|
|
Section
9.22.
|
REO
Property.
|
167
|
|
Section
9.23.
|
Notices
to the Depositor and the Trustee
|
167
|
|
Section
9.24.
|
Reports
to the Trustee.
|
168
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports..
|
169
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
170
|
|
Section
9.27.
|
Merger
or Consolidation.
|
171
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
171
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
171
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
172
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
173
|
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage Loans.
|
173
|
|
Section
9.33.
|
Alternative
Index.
|
174
|
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
174
|
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
176
|
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
176
|
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
176
|
|
ARTICLE
X REMIC ADMINISTRATION
|
||
|
Section
10.01.
|
REMIC
Administration.
|
176
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
179
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
180
|
|
Section
10.04.
|
REO
Property.
|
180
|
iii
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
||
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
181
|
|
Section
11.02.
|
Entire
Agreement.
|
181
|
|
Section
11.03.
|
Amendment.
|
181
|
|
Section
11.04.
|
Voting
Rights.
|
183
|
|
Section
11.05.
|
Provision
of Information.
|
184
|
|
Section
11.06.
|
Governing
Law.
|
184
|
|
Section
11.07.
|
Notices.
|
184
|
|
Section
11.08.
|
Severability
of Provisions.
|
185
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
185
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
185
|
|
Section
11.11.
|
Benefits
of Agreement.
|
185
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
185
|
|
Section
11.13.
|
Conflicts.
|
187
|
|
Section
11.14.
|
Counterparts.
|
187
|
|
Section
11.15.
|
Transfer
of Servicing.
|
187
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
E
|
List
of Servicing Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Monthly
Remittance Advice
|
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
|
Exhibit
K
|
Description
of Custodial Agreements
|
|
Exhibit
L
|
List
of Credit Risk Management Agreements
|
|
Exhibit
M-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
M-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global
Security to
Restricted Global Security
|
|
Exhibit
N
|
Interest
Rate Cap Agreement
|
|
Exhibit
O
|
Interest
Rate Swap Agreement
|
|
Exhibit
P-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
P-4
|
Additional
Disclosure Notification
|
|
Exhibit
Q-1
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
|
Exhibit
Q-2
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the
Trustee
|
|
Exhibit
R
|
Form
of Credit Risk Management Reports
|
|
Exhibit
S
|
Form
of Certification Regarding Servicing Criteria to be Addressed
in Report on
Assessment of Compliance
|
|
Exhibit
T
|
[Reserved]
|
|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
|
Exhibit
V
|
Transaction
Parties
|
|
Exhibit
W
|
[Reserved]
|
|
Exhibit
X
|
[Reserved]
|
|
Exhibit
Y
|
Form
of Call Option Notice
|
|
Exhibit
Z
|
Form
of Purchaser Call Option Notice
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
Schedule
B
|
First
Payment Default Mortgage Loans
|
|
Schedule
C
|
Projected
Aggregate Scheduled Principal Balance of Forty-Year Mortgage
Loans
|
v
This
TRUST AGREEMENT, dated as of February 1, 2007 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), U.S.
BANK
NATIONAL ASSOCIATION,
as
trustee (the “Trustee”), AURORA LOAN SERVICES LLC, as master servicer (the
“Master Servicer”) and OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.,
as
credit risk manager (the “Credit Risk Manager”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund,
as
consideration for its transfer to the Trust Fund of the Mortgage Loans
and the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the
Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer and the Trustee herein
with
respect to the Mortgage Loans and the other property constituting the Trust
Fund
are for the benefit of the Holders from time to time of the Certificates
and, to
the extent provided herein, any NIMS Insurer, the Cap Counterparty and
the Swap
Counterparty. The Depositor, the Trustee, the Master Servicer and the Credit
Risk Manager are entering into this Agreement, and the Trustee is accepting
the
Trust Fund created hereby, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged.
As
provided herein, an election shall be made that the Trust Fund (exclusive
of (i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and
the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
(iv)
the Basis Risk Reserve Fund, (v) the Supplemental Interest Trust, (vi)
the right
to receive FPD Premiums and PPTL Premiums, (vii) the obligation to pay
Class I
Shortfalls, (viii) the Interest Rate Cap Agreement, (ix) the Interest Rate
Cap Account (x) the Collateral Account, (xi) the Final Maturity Reserve
Trust,
and (xii) the Final Maturity Reserve Trust Account (collectively, the “Excluded
Trust Assets”)) be treated for federal income tax purposes as comprising four
real estate mortgage investment conduits under Section 860D of the Code
(each a
“REMIC” or, in the alternative “REMIC 1,” “REMIC 2,” “REMIC 3,” and “REMIC 4”
(REMIC 4 also being referred to as the “Upper Tier REMIC”)). Any inconsistencies
or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved in a manner that preserves the validity of such REMIC
elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of
the
REMIC Provisions. In addition, each Certificate, other than the Class R,
Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. Each Class
of
Certificates (other than the Class X Certificates) represents the right
to
receive payments in respect of the Final Maturity Reserve Account. The
Class
LT-R Certificate represents ownership of the sole Class of residual interest
in
REMIC 1. The Class R Certificate represents ownership of the sole Class
of
residual interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC
for
purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier
Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the
REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such
Lower
Tier Interest is hereby designated as a regular interest in REMIC 2. REMIC
2
shall hold as its assets the uncertificated Lower Tier Interests in REMIC
1, and
each such Lower Tier Interest is hereby designated as a regular interest
in
REMIC 1. REMIC 1 shall hold as its assets the property of the Trust Fund
other
than the Lower Tier Interests in REMIC 1, REMIC 2, and REMIC 3 and the
Excluded
Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions,
the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan
held by
the Trust Fund on the Closing Date, each of which is hereby designated
as a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each REMIC 1 Regular Interest shall have
an
initial principal balance equal to the Scheduled Principal Balance of the
Mortgage Loan to which it relates and shall bear interest at a per annum
rate
equal to the Net Mortgage Rate of such Mortgage Loan. In the event a Qualified
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualified Substitute
Mortgage Loan shall be distributed on such REMIC 1 Regular Interest at
a rate in
excess of the Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense
of REMIC
1 all expenses of the Trust Fund for such Distribution Date, other than
any
expenses in respect of the Swap Agreement.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the Lower Tier Interests in REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Lower Tier Interests in REMIC 1 in accordance
with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Lower Tier Interest in REMIC 1. All losses on
the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC
1 in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period to the Lower Tier Interest
in
REMIC 1 corresponding to the Mortgage Loan with respect to which such amounts
were received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class
LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC
2 (the
“REMIC 2 Regular Interests”):
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-A
|
$
|
29,923,737.00
|
(1)
|
||||
|
LT2-F1
|
$
|
9,222,500.00
|
(2)
|
||||
|
LT2-V1
|
$
|
9,222,500.00
|
(3)
|
|
|||
|
LT2-F2
|
$
|
8,950,000.00
|
(2)
|
||||
|
LT2-V2
|
$
|
8,950,000.00
|
(3)
|
||||
|
LT2-F3
|
$
|
8,686,000.00
|
(2)
|
||||
|
LT2-V3
|
$
|
8,686,000.00
|
(3)
|
||||
|
LT2-F4
|
$
|
8,429,000.00
|
(2)
|
||||
|
LT2-V4
|
$
|
8,429,000.00
|
(3)
|
||||
|
LT2-F5
|
$
|
8,180,500.00
|
(2)
|
||||
|
LT2-V5
|
$
|
8,180,500.00
|
(3)
|
||||
|
LT2-F6
|
$
|
7,938,000.00
|
(2)
|
||||
|
LT2-V6
|
$
|
7,938,000.00
|
(3)
|
||||
|
LT2-F7
|
$
|
7,704,000.00
|
(2)
|
||||
|
LT2-V7
|
$
|
7,704,000.00
|
(3)
|
||||
|
LT2-F8
|
$
|
7,476,500.00
|
(2)
|
||||
|
LT2-V8
|
$
|
7,476,500.00
|
(3)
|
||||
|
LT2-F9
|
$
|
7,255,000.00
|
(2)
|
||||
|
LT2-V9
|
$
|
7,255,000.00
|
(3)
|
||||
|
LT2-F10
|
$
|
7,041,000.00
|
(2)
|
||||
|
LT2-V10
|
$
|
7,041,000.00
|
(3)
|
||||
|
LT2-F11
|
$
|
6,863,500.00
|
(2)
|
||||
|
LT2-V11
|
$
|
6,863,500.00
|
(3)
|
||||
|
LT2-F12
|
$
|
8,506,000.00
|
(2)
|
||||
|
LT2-V12
|
$
|
8,506,000.00
|
(3)
|
||||
|
LT2-F13
|
$
|
8,441,000.00
|
(2)
|
||||
|
LT2-V13
|
$
|
8,441,000.00
|
(3)
|
||||
|
LT2-F14
|
$
|
8,345,000.00
|
(2)
|
||||
|
LT2-V14
|
$
|
8,345,000.00
|
(3)
|
||||
|
LT2-F15
|
$
|
8,281,000.00
|
(2)
|
||||
|
LT2-V15
|
$
|
8,281,000.00
|
(3)
|
||||
|
LT2-F16
|
$
|
8,120,000.00
|
(2)
|
||||
|
LT2-V16
|
$
|
8,120,000.00
|
(3)
|
||||
|
LT2-F17
|
$
|
8,024,500.00
|
(2)
|
||||
|
LT2-V17
|
$
|
8,024,500.00
|
(3)
|
||||
|
LT2-F18
|
$
|
7,863,500.00
|
(2)
|
||||
|
LT2-V18
|
$
|
7,863,500.00
|
(3)
|
||||
|
LT2-F19
|
$
|
7,735,500.00
|
(2)
|
||||
|
LT2-V19
|
$
|
7,735,500.00
|
(3)
|
||||
3
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-F20
|
$
|
7,574,500.00
|
(2)
|
||||
|
LT2-V20
|
$
|
7,574,500.00
|
(3)
|
||||
|
LT2-F21
|
$
|
7,382,500.00
|
(2)
|
||||
|
LT2-V21
|
$
|
7,382,500.00
|
(3)
|
||||
|
LT2-F22
|
$
|
7,189,500.00
|
(2)
|
||||
|
LT2-V22
|
$
|
7,189,500.00
|
(3)
|
||||
|
LT2-F23
|
$
|
24,842,000.00
|
(2)
|
||||
|
LT2-V23
|
$
|
24,842,000.00
|
(3)
|
||||
|
LT2-F24
|
$
|
13,352,500.00
|
(2)
|
||||
|
LT2-V24
|
$
|
13,352,500.00
|
(3)
|
||||
|
LT2-F25
|
$
|
11,650,500.00
|
(2)
|
||||
|
LT2-V25
|
$
|
11,650,500.00
|
(3)
|
||||
|
LT2-F26
|
$
|
8,859,000.00
|
(2)
|
||||
|
LT2-V26
|
$
|
8,859,000.00
|
(3)
|
||||
|
LT2-F27
|
$
|
6,932,500.00
|
(2)
|
||||
|
LT2-V27
|
$
|
6,932,500.00
|
(3)
|
||||
|
LT2-F28
|
$
|
5,488,500.00
|
(2)
|
||||
|
LT2-V28
|
$
|
5,488,500.00
|
(3)
|
||||
|
LT2-F29
|
$
|
4,397,500.00
|
(2)
|
||||
|
LT2-V29
|
$
|
4,397,500.00
|
(3)
|
||||
|
LT2-F30
|
$
|
3,594,500.00
|
(2)
|
||||
|
LT2-V30
|
$
|
3,594,500.00
|
(3)
|
||||
|
LT2-F31
|
$
|
2,920,500.00
|
(2)
|
||||
|
LT2-V31
|
$
|
2,920,500.00
|
(3)
|
||||
|
LT2-F32
|
$
|
2,407,500.00
|
(2)
|
||||
|
LT2-V32
|
$
|
2,407,500.00
|
(3)
|
||||
|
LT2-F33
|
$
|
2,279,000.00
|
(2)
|
||||
|
LT2-V33
|
$
|
2,279,000.00
|
(3)
|
||||
|
LT2-F34
|
$
|
2,150,500.00
|
(2)
|
||||
|
LT2-V34
|
$
|
2,150,500.00
|
(3)
|
||||
|
LT2-F35
|
$
|
2,054,000.00
|
(2)
|
||||
|
LT2-V35
|
$
|
2,054,000.00
|
(3)
|
||||
|
LT2-F36
|
$
|
1,958,000.00
|
(2)
|
||||
|
LT2-V36
|
$
|
1,958,000.00
|
(3)
|
||||
|
LT2-F37
|
$
|
1,861,500.00
|
(2)
|
||||
|
LT2-V37
|
$
|
1,861,500.00
|
(3)
|
||||
|
LT2-F38
|
$
|
1,765,000.00
|
(2)
|
||||
|
LT2-V38
|
$
|
1,765,000.00
|
(3)
|
||||
|
LT2-F39
|
$
|
1,701,000.00
|
(2)
|
||||
|
LT2-V39
|
$
|
1,701,000.00
|
(3)
|
||||
|
LT2-F40
|
$
|
1,573,000.00
|
(2)
|
||||
|
LT2-V40
|
$
|
1,573,000.00
|
(3)
|
||||
|
LT2-F41
|
$
|
1,540,500.00
|
(2)
|
||||
|
LT2-V41
|
$
|
1,540,500.00
|
(3)
|
||||
4
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-F42
|
$
|
1,444,500.00
|
(2)
|
||||
|
LT2-V42
|
$
|
1,444,500.00
|
(3)
|
||||
|
LT2-F43
|
$
|
1,380,000.00
|
(2)
|
||||
|
LT2-V43
|
$
|
1,380,000.00
|
(3)
|
||||
|
LT2-F44
|
$
|
1,316,000.00
|
(2)
|
||||
|
LT2-V44
|
$
|
1,316,000.00
|
(3)
|
||||
|
LT2-F45
|
$
|
1,219,500.00
|
(2)
|
||||
|
LT2-V45
|
$
|
1,219,500.00
|
(3)
|
||||
|
LT2-F46
|
$
|
1,188,000.00
|
(2)
|
||||
|
LT2-V46
|
$
|
1,188,000.00
|
(3)
|
||||
|
LT2-F47
|
$
|
1,123,000.00
|
(2)
|
||||
|
LT2-V47
|
$
|
1,123,000.00
|
(3)
|
||||
|
LT2-F48
|
$
|
1,091,500.00
|
(2)
|
||||
|
LT2-V48
|
$
|
1,091,500.00
|
(3)
|
||||
|
LT2-F49
|
$
|
995,000.00
|
(2)
|
||||
|
LT2-V49
|
$
|
995,000.00
|
(3)
|
||||
|
LT2-F50
|
$
|
963,000.00
|
(2)
|
||||
|
LT2-V50
|
$
|
963,000.00
|
(3)
|
||||
|
LT2-F51
|
$
|
930,500.00
|
(2)
|
||||
|
LT2-V51
|
$
|
930,500.00
|
(3)
|
||||
|
LT2-F52
|
$
|
867,000.00
|
(2)
|
||||
|
LT2-V52
|
$
|
867,000.00
|
(3)
|
||||
|
LT2-F53
|
$
|
834,000.00
|
(2)
|
||||
|
LT2-V53
|
$
|
834,000.00
|
(3)
|
||||
|
LT2-F54
|
$
|
802,500.00
|
(2)
|
||||
|
LT2-V54
|
$
|
802,500.00
|
(3)
|
||||
|
LT2-F55
|
$
|
738,500.00
|
(2)
|
||||
|
LT2-V55
|
$
|
738,500.00
|
(3)
|
||||
|
LT2-F56
|
$
|
738,000.00
|
(2)
|
||||
|
LT2-V56
|
$
|
738,000.00
|
(3)
|
||||
|
LT2-F57
|
$
|
674,000.00
|
(2)
|
||||
|
LT2-V57
|
$
|
674,000.00
|
(3)
|
||||
|
LT2-F58
|
$
|
642,000.00
|
(2)
|
||||
|
LT2-V58
|
$
|
642,000.00
|
(3)
|
||||
|
LT2-F59
|
$
|
626,000.00
|
(2)
|
||||
|
LT2-V59
|
$
|
626,000.00
|
(3)
|
||||
|
LT2-F60
|
$
|
587,000.00
|
(2)
|
||||
|
LT2-V60
|
$
|
587,000.00
|
(3)
|
||||
|
LT2-F61
|
$
|
558,500.00
|
(2)
|
||||
|
LT2-V61
|
$
|
558,500.00
|
(3)
|
||||
|
LT2-F62
|
$
|
530,500.00
|
(2)
|
||||
|
LT2-V62
|
$
|
530,500.00
|
(3)
|
||||
|
LT2-F63
|
$
|
504,500.00
|
(2)
|
||||
|
LT2-V63
|
$
|
504,500.00
|
(3)
|
||||
5
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-F64
|
$
|
480,000.00
|
(2)
|
||||
|
LT2-V64
|
$
|
480,000.00
|
(3)
|
||||
|
LT2-F65
|
$
|
456,000.00
|
(2)
|
||||
|
LT2-V65
|
$
|
456,000.00
|
(3)
|
||||
|
LT2-F66
|
$
|
433,500.00
|
(2)
|
||||
|
LT2-V66
|
$
|
433,500.00
|
(3)
|
||||
|
LT2-F67
|
$
|
412,000.00
|
(2)
|
||||
|
LT2-V67
|
$
|
412,000.00
|
(3)
|
||||
|
LT2-F68
|
$
|
391,500.00
|
(2)
|
||||
|
LT2-V68
|
$
|
391,500.00
|
(3)
|
||||
|
LT2-F69
|
$
|
372,500.00
|
(2)
|
||||
|
LT2-V69
|
$
|
372,500.00
|
(3)
|
||||
|
LT2-F70
|
$
|
354,000.00
|
(2)
|
||||
|
LT2-V70
|
$
|
354,000.00
|
(3)
|
||||
|
LT2-F71
|
$
|
6,811,500.00
|
(2)
|
||||
|
LT2-V71
|
$
|
6,811,500.00
|
(3)
|
||||
|
LT2-I
|
(4)
|
(4)
|
|||||
|
LT2-R
|
(5)
|
(5)
|
|||||
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the lesser of
(i) the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the excess, if
any, of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the
REMIC Swap
Rate for such Distribution Date.
|
|
(4)
|
The
LT2-I Interest is an interest only interest that does not have
a principal
balance but has a notional amount as of any Distribution Date
equal to the
Scheduled Principal Balances of the Mortgage Loans as of the
first day of
the related Collection Period (or in the case of the first Distribution
Date, as of the Cut-Off Date). For any Distribution Date before
the
Distribution Date in March 2017, it shall bear interest for the
related
Accrual Period at a fixed rate of 0.00%, and for each Distribution
Date
commencing on the Distribution Date in March 2017 and on each
Distribution
Date thereafter until the Final Scheduled Distribution Date,
it shall bear
interest for the related Accrual Period at a fixed rate equal
to the Final
Maturity Reserve Rate.
|
|
(5)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R interest is hereby designated as the
sole class
of residual interest in REMIC 2.
|
On
each
Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for the two Mortgage Pools (net of the expenses paid
by REMIC
1) with respect to each of the Lower Tier Interests in REMIC 2 based on
the
above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the two Mortgage Pools with respect to
the
Lower Tier Interests in REMIC 2, first to the Class LT2-A Interest until
its
principal balance is reduced to zero, and then sequentially, to the other
Lower
Tier Interests in REMIC 2 in ascending order of their numerical class
designation, and, with respect to each pair of classes having the same
numerical
designation, in equal amounts to each such class, until the principal balance
of
each such class is reduced to zero. All losses on the Mortgage Loans shall
be
allocated among the Lower Tier Interests in REMIC 2 in the same manner
that
principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period to the Class LT2-F71 Lower
Tier
Interest.
6
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class
LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificate(s)
|
|
Class
LT3-A1
|
(1)
|
(3)
|
A1
|
|
Class
LT3-A2
|
(1)
|
(3)
|
A2
|
|
Class
LT3-A3
|
(1)
|
(3)
|
A3
|
|
Class
LT3-A4
|
(1)
|
(3)
|
A4
|
|
Class
LT3-A5
|
(1)
|
(3)
|
A5
|
|
Class
LT3-M1
|
(1)
|
(3)
|
M1
|
|
Class
LT3-M2
|
(1)
|
(3)
|
M2
|
|
Class
LT3-M3
|
(1)
|
(3)
|
M3
|
|
Class
LT3-M4
|
(1)
|
(3)
|
M4
|
|
Class
LT3-M5
|
(1)
|
(3)
|
M5
|
|
Class
LT3-M6
|
(1)
|
(3)
|
M6
|
|
Class
LT3-M7
|
(1)
|
(3)
|
M7
|
|
Class
LT3-M8
|
(1)
|
(3)
|
M8
|
|
Class
LT3-M9
|
(1)
|
(3)
|
M9
|
|
Class
LT3-B1
|
(1)
|
(3)
|
B1
|
|
Class
LT3-B2
|
(1)
|
(3)
|
B2
|
|
Class
LT3-P
|
(1)
|
(3)
|
P
|
|
Class
LT3-Q
|
(1)
|
(4)
|
N/A
|
|
Class
LT3-IO
|
(2)
|
(2)
|
N/A
|
|
Class
LT3-I
|
(5)
|
(5)
|
N/A
|
|
Class
LT3-R
|
(6)
|
(6)
|
R
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests in REMIC 3 is a per annum
rate
equal to the weighted average of the interest rates on the Lower
Tier
Interests in REMIC 2 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest
is entitled
to a portion of the interest accruals on a Lower Tier Interest
in REMIC 2
having an “F” in its class designation, as described in footnote two
below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 2 to a cap equal to
Swap LIBOR
for such Distribution Date.
|
7
|
(2)
|
The
Class LT3-IO Interest is an interest only class that does not
have a
principal balance. For only those Distribution Dates listed in
the first
column in the table below, the Class LT3-IO shall be entitled
to interest
accrued on the Lower Tier Interest in REMIC 2 listed in the second
column
in the table below at a per annum rate equal to the excess, if
any, of (i)
the interest rate for such Lower Tier Interest in REMIC 2 for
such
Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
2
|
Class
LT2-F1
|
|
2-3
|
Class
LT2-F2
|
|
2-4
|
Class
LT2-F3
|
|
2-5
|
Class
LT2-F4
|
|
2-6
|
Class
LT2-F5
|
|
2-7
|
Class
LT2-F6
|
|
2-8
|
Class
LT2-F7
|
|
2-9
|
Class
LT2-F8
|
|
2-10
|
Class
LT2-F9
|
|
2-11
|
Class
LT2-F10
|
|
2-12
|
Class
LT2-F11
|
|
2-13
|
Class
LT2-F12
|
|
2-14
|
Class
LT2-F13
|
|
2-15
|
Class
LT2-F14
|
|
2-16
|
Class
LT2-F15
|
|
2-17
|
Class
LT2-F16
|
|
2-18
|
Class
LT2-F17
|
|
2-19
|
Class
LT2-F18
|
|
2-20
|
Class
LT2-F19
|
|
2-21
|
Class
LT2-F20
|
|
2-22
|
Class
LT2-F21
|
|
2-23
|
Class
LT2-F22
|
|
2-24
|
Class
LT2-F23
|
|
2-25
|
Class
LT2-F24
|
|
2-26
|
Class
LT2-F25
|
|
2-27
|
Class
LT2-F26
|
|
2-28
|
Class
LT2-F27
|
|
2-29
|
Class
LT2-F28
|
|
2-30
|
Class
LT2-F29
|
|
2-31
|
Class
LT2-F30
|
|
2-32
|
Class
LT2-F31
|
|
2-33
|
Class
LT2-F32
|
|
2-34
|
Class
LT2-F33
|
|
2-35
|
Class
LT2-F34
|
|
2-36
|
Class
LT2-F35
|
|
2-37
|
Class
LT2-F36
|
|
2-38
|
Class
LT2-F37
|
|
2-39
|
Class
LT2-F38
|
|
2-40
|
Class
LT2-F39
|
|
2-41
|
Class
LT2-F40
|
|
2-42
|
Class
LT2-F41
|
|
2-43
|
Class
LT2-F42
|
|
2-44
|
Class
LT2-F43
|
|
2-45
|
Class
LT2-F44
|
8
|
2-46
|
Class
LT2-F45
|
|
2-47
|
Class
LT2-F46
|
|
2-48
|
Class
LT2-F47
|
|
2-49
|
Class
LT2-F48
|
|
2-50
|
Class
LT2-F49
|
|
2-51
|
Class
LT2-F50
|
|
2-52
|
Class
LT2-F51
|
|
2-53
|
Class
LT2-F52
|
|
2-54
|
Class
LT2-F53
|
|
2-55
|
Class
LT2-F54
|
|
2-56
|
Class
LT2-F55
|
|
2-57
|
Class
LT2-F56
|
|
2-58
|
Class
LT2-F57
|
|
2-59
|
Class
LT2-F58
|
|
2-60
|
Class
LT2-F59
|
|
2-61
|
Class
LT2-F60
|
|
2-62
|
Class
LT2-F61
|
|
2-63
|
Class
LT2-F62
|
|
2-64
|
Class
LT2-F63
|
|
2-65
|
Class
LT2-F64
|
|
2-66
|
Class
LT2-F65
|
|
2-67
|
Class
LT2-F66
|
|
2-68
|
Class
LT2-F67
|
|
2-69
|
Class
LT2-F68
|
|
2-70
|
Class
LT2-F69
|
|
2-71
|
Class
LT2-F70
|
|
2-72
|
Class
LT2-F71
|
___________________________
|
(3)
|
This
interest shall have an initial class principal amount equal to
one-half of
the initial Class Principal Amount of its Corresponding Class
of
Certificates.
|
|
(4)
|
This
interest shall have an initial class principal amount equal to
the excess
of (i) the Aggregate Pool Balance as of the Cut-off Date, over
(ii) the
aggregate initial class principal amount of each other regular
interest in
REMIC 3.
|
|
(5)
|
The
Class LT3-I Interest is an interest only class that does not
have a
principal balance. The Class LT3-I Interest shall evidence ownership
of
the LT-I Interest in REMIC 2.
|
|
(6)
|
The
Class LT3-R interest is the sole class of residual interests
in REMIC 3.
It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 3 based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class LT3-Q Interest shall be deferred in
an amount
equal to one-half of the increase, if any, in the Overcollateralization
Amount
for such Distribution Date. Any interest so deferred shall itself bear
interest
at the interest rate for the Class LT3-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the
other
Lower Tier Interests in REMIC 3 having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in REMIC 3 in the following order
of
priority:
9
(a)
First, to the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-A4, Class
LT3-A5, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class
LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1,
Class LT3-B2, and Class LT3-P Interests until the principal balance of
each such
Lower Tier Interest equals one-half of the Class Principal Amount of the
Corresponding Class of Certificates immediately after such Distribution
Date;
and
(b)
Second, to the Class LT3-Q Interest, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the Class LT2-F71 Lower
Tier
Interest in REMIC 2 on such Distribution Date to the Class LT3-Q
Interest.
The
Certificates:
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination
for each
Class of Certificates comprising interests in the Trust Fund created hereunder.
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal
Amount
|
Minimum
Denomination
|
|||||||
|
Class
A1
|
(1)
|
$
|
248,328,000
|
$
|
25,000
|
|||||
|
Class
A2
|
(2)
|
$
|
156,984,000
|
$
|
25,000
|
|||||
|
Class
A3
|
(3)
|
$
|
26,814,000
|
$
|
25,000
|
|||||
|
Class
A4
|
(4)
|
$
|
62,525,000
|
$
|
25,000
|
|||||
|
Class
A5
|
(5)
|
$
|
24,347,000
|
$
|
25,000
|
|||||
|
Class
M1
|
(6)
|
$
|
25,035,000
|
$
|
100,000
|
|||||
|
Class
M2
|
(7)
|
$
|
24,714,000
|
$
|
100,000
|
|||||
|
Class
M3
|
(8)
|
$
|
8,024,000
|
$
|
100,000
|
|||||
|
Class
M4
|
(9)
|
$
|
9,308,000
|
$
|
100,000
|
|||||
|
Class
M5
|
(10)
|
$
|
8,345,000
|
$
|
100,000
|
|||||
|
Class
M6
|
(11)
|
$
|
6,098,000
|
$
|
100,000
|
|||||
|
Class
M7
|
(12)
|
$
|
6,740,000
|
$
|
100,000
|
|||||
|
Class
M8
|
(13)
|
$
|
5,456,000
|
$
|
100,000
|
|||||
|
Class
M9
|
(14)
|
$
|
6,419,000
|
$
|
100,000
|
|||||
|
Class
B1
|
(15)
|
$
|
7,703,000
|
$
|
100,000
|
|||||
|
Class
B2
|
(16)
|
$
|
6,098,000
|
$
|
100,000
|
|||||
|
Class
X
|
(17)
|
(17)
|
10%
|
|
||||||
|
Class
R
|
(18)
|
(18)
|
100%
|
|
||||||
|
Class
P
|
(19)
|
$
|
100
(20)
|
10%
|
|
|||||
|
Class
LT-R
|
(21)
|
(21)
|
100%
|
|
||||||
_______
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A1 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.135% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of
the Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap
for such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 2 Senior Certificates have been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A1 Certificates
will be LIBOR plus 0.270%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding
sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A1 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate
on the Class
A1 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A1 Certificates if the REMIC
3 Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A1 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
10
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A2 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.090% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of
the Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap
for such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A2 Certificates
will be LIBOR plus 0.180%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding
sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A2 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate
on the Class
A2 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A2 Certificates if the REMIC
3 Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A2 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A3 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.130% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of
the Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap
for such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A3 Certificates
will be LIBOR plus 0.260%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding
sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A3 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate
on the Class
A3 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A3 Certificates if the REMIC
3 Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A3 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A4 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.150% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of
the Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap
for such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A4 Certificates
will be LIBOR plus 0.300%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding
sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A4 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate
on the Class
A4 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A4 Certificates if the REMIC
3 Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A4 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
11
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A5 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.220% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of
the Group 1
Senior Certificates is outstanding, the Pool 2 Net Funds Cap
for such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A5 Certificates
will be LIBOR plus 0.440%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding
sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A5 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate
on the Class
A5 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A5 Certificates if the REMIC
3 Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A5 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M1 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.240% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M1 Certificates
will be LIBOR plus 0.360%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M1 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M1
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M1 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M2 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.280% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M2 Certificates
will be LIBOR plus 0.420%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M2 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
12
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M3 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.350% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M3 Certificates
will be LIBOR plus 0.525%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M3 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M3
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M3 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M4 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.440% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M4 Certificates
will be LIBOR plus 0.660%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M4 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M4 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M4
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M4 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M5 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.450% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M5 Certificates
will be LIBOR plus 0.675%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M5 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M5 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M5
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M5 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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13
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(11)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M6 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 0.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M6 Certificates
will be LIBOR plus 0.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M6 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M6 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M6
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M6 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M7 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 1.450% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M7 Certificates
will be LIBOR plus 2.175%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M7 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M7 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M7
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M7 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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(13)
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The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M8 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 2.250% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased
pursuant to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M8 Certificates
will be LIBOR plus 3.375%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M8 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M8 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M8
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M8 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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(14)
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The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M9 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M9 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class M9 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class M9 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
M9
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M9 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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14
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B1 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 1.800% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class B1 Certificates
will be LIBOR plus 2.700%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class B1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class B1 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
B1
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B1 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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(16)
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The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B2 Certificates is the
per annum
rate equal to the lesser of (i) LIBOR plus 1.800% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date,
then with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class B2 Certificates
will be LIBOR plus 2.700%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net
Funds Cap;
therefore, on any Distribution Date on which the Certificate
Interest Rate
for the Class B2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been
paid from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate
Interest
Rate on the Class B2 Certificates is based on the Subordinate
Net Funds
Cap, the amount of interest that would have accrued on the Class
B2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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|
(17)
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For
purposes of the REMIC Provisions, Class X shall have an initial
principal
balance of $8,987,637.76, and the right to receive distributions
of such
amount represents a regular interest in the Upper Tier REMIC.
The Class X
Certificate shall also comprise two notional components, each
of which
represents a regular interest in the Upper Tier REMIC. The first
such
component has a notional balance that will at all times equal
the
aggregate of the Class Principal Amounts of the Lower Tier Interests
in
REMIC 3, and, for each Distribution Date (and the related Accrual
Period)
this notional component shall bear interest at a per annum rate
equal to
the excess, if any, of (i) (a) the weighted average of the interest
rates
on the Lower Tier Interests in REMIC 3 (other than any interest-only
regular interest) minus (b) the Credit Risk Manager’s Fee Rate, over (ii)
the Adjusted Lower Tier WAC. The second notional component represents
the
right to receive all distributions in respect of the Class LT3-IO
Interest
in REMIC 3 (the “Class LT4-I” interest). In addition, for purposes of the
REMIC Provisions, the Class X Certificate shall represent beneficial
ownership of (i) the Basis Risk Reserve Fund; (ii) the Supplemental
Interest Trust, including the Swap Agreement, the Swap Account,
the
Interest Rate Cap Agreement and the Interest Rate Cap Account,
(iii) any
PPTL Premium, (iv) any FPD Premium, (v) the Final Maturity Reserve
Trust
and (vi) an interest in the notional principal contracts described
in
Section 10.01(n) hereof.
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(18)
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The
Class R Certificate will be issued without a Class Principal
Amount and
will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier
REMIC, as
well as ownership of the Class LT2-R Interest and Class LT3-R
Interest.
The Class R Certificate will be issued as a single Certificate
evidencing
the entire Percentage Interest in such
Class.
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15
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(19)
|
The
Class P Certificates shall not bear interest at a stated rate.
Prepayment
Premiums paid with respect to the Mortgage Loans shall be paid
to the
Holders of the Class P Certificates as provided in Section 5.02(i).
For
purposes of the REMIC Provisions, Class P shall represent a regular
interest in the Upper Tier REMIC.
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|
(20)
|
The
Class P Certificates will have an initial Class P Principal Amount
of
$100.
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|
(21)
|
The
Class LT-R Certificate will be issued without a Class Principal
Amount and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The
Class LT-R
Certificate will be issued as a single Certificate evidencing
the entire
Percentage Interest in such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$641,925,737.76.
In
consideration of the mutual agreements herein contained, the Depositor,
the
Seller, the Credit Risk Manager, the Master Servicer and the Trustee hereby
agree as follows:
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Definitions. The
following words and phrases, unless the context otherwise requires,
shall
have the following meanings:
|
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary
mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to
the
extent applicable to the Trustee (as successor to the Master Servicer)
or the
Master Servicer, or (y) as provided in the applicable Servicing Agreement,
to
the extent applicable to the related Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date,
the
period beginning on the Distribution Date in the calendar month immediately
preceding the month in which the related Distribution Date occurs (or,
in the
case of the first Distribution Date, beginning on February 25, 2007) and
ending
on the day immediately preceding the related Distribution Date, as calculated
in
accordance with Section 1.03. With respect to each Class of Lower Tier
Interests
and any Distribution Date, the calendar month preceding such Distribution
Date.
Act:
As
defined in Section 3.03(c).
16
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of a Servicer that Services any of the Mortgage Loans and each
Person
who is not an affiliate of any Servicer, who Services 10% or more of the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to
(i) two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class
LT3-A4, Class LT3-A5, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4,
Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class
LT3-B1, Class LT3-B2, Class LT3-P and Class LT3-Q Interests, weighted in
proportion to their Class Principal Amounts as of the beginning of the
related
Accrual Period and computed by subjecting the rate on the Class LT3-Q Interest
to a cap of 0.00%, and by subjecting the rate on each of the Class LT3-A1,
Class
LT3-A2, Class LT3-A3, Class LT3-A4, Class LT3-A5, Class LT3-M1, Class LT3-M2,
Class LT3-M3, Class LT3-M4, Class LT3-M5, Class LT3-M6, Class LT3-M7, Class
LT3-M8, Class LT3-M9, Class LT3-B1, Class LT3-B2 and Class LT3-P Interests
to a
cap that corresponds to the Certificate Interest Rate (determined by
substituting the REMIC 3 Net Funds Cap for the applicable Net Funds Cap)
for the
Corresponding Class of Certificates multiplied by the quotient of (a) the
actual
number of days in the Accrual Period, divided by (b) 30.
Advance:
With
respect to a Mortgage Loan other than a Simple Interest Mortgage Loan,
an
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the applicable Servicing Fee) on one or more Mortgage
Loans
that were due on a Due Date in the related Collection Period and not received
as
of the close of business on the related Determination Date, required to
be made
by or on behalf of the Master Servicer and any Servicer (or by the Trustee
as
successor to the Master Servicer) pursuant to Section 5.04, but only to
the
extent that such amount is expected, in the reasonable judgment of the
Master
Servicer or Servicer (or by the Trustee as successor to the Master Servicer),
to
be recoverable from collections or recoveries in respect of such Mortgage
Loans.
With respect to a Simple Interest Mortgage Loan, an advance of an amount
equal
to the interest accrual on such Simple Interest Mortgage Loan through the
related Due Date but not received as of the close of business on the related
Determination Date (net of applicable Servicing Fee) required to be made
by or
on behalf of the Master Servicer or any Servicer (or by the Trustee as
successor
to the Master Servicer) pursuant to Section 5.04, but only to the extent
that
such amount is expected, in the reasonable judgment of the Master Servicer
or
Servicer (or by the Trustee as successor to the Master Servicer), to be
recoverable from collections or recoveries in respect of such Simple Interest
Mortgage Loans.
17
Adverse
REMIC Event:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of
the
Code, for any group of assets identified as a REMIC in the Preliminary
Statement
to this Agreement, or (ii) the imposition of any tax, including the tax
imposed
under Section 860F(a)(1) on prohibited transactions and the tax imposed
under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Expense Rate:
With
respect to any Mortgage Loan, the related Servicing Fee Rate.
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the aggregate of the
Principal Remittance Amounts for each Mortgage Pool for such Distribution
Date
and (y) the amount, if any, by which (i) the Overcollateralization Amount
for
such date, calculated for this purpose on the basis of the assumption that
100%
of the aggregate of the Principal Remittance Amounts for such Distribution
Date
is applied on such date in reduction of the aggregate Certificate Principal
Amount of the Certificates, exceeds (ii) the Targeted Overcollateralization
Amount for such Distribution Date.
Aggregate
Pool Balance:
As of
any date of determination, the aggregate of the Pool Balances of Pool 1
and Pool
2 on such date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the
day
after the end of the preceding Anniversary Year and ending on the next
succeeding anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the
aggregate
Certificate Principal Amount of the LIBOR Certificates after giving effect
to
distributions of principal on such Distribution Date, but before giving
effect
to any application of the Applied Loss Amount with respect to such date,
exceeds
(y) the Aggregate Pool Balance for such Distribution Date.
18
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made
in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument,
in
recordable form, sufficient under the laws of the jurisdiction wherein
the
related Mortgaged Property is located to reflect the sale of the Mortgage
to the
Trustee, which assignment, notice of transfer or equivalent instrument
may be in
the form of one or more blanket assignments covering the Mortgage Loans
secured
by Mortgaged Properties located in the same jurisdiction, if permitted
by law;
provided,
however,
that
neither a Custodian nor the Trustee shall be responsible for determining
whether
any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
B1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate of the Class
Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8 and Class M9 Certificates, in
each
case after giving effect to distributions on such Distribution Date and
(ii) the
Class Principal Amount of the Class B1 Certificates immediately prior to
such
Distribution Date exceeds (y) the B1 Target Amount.
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 95.30% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
B2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate of the Class
Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8, Class M9 and Class B1 Certificates,
in each case after giving effect to distributions on such Distribution
Date and
(ii) the Class Principal Amount of the Class B2 Certificates immediately
prior
to such Distribution Date exceeds (y) the B2 Target Amount.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 97.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
19
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than
its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bank:
Xxxxxx
Brothers Bank, FSB and its successors and assigns.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the
filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing
in the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either
the
Bankruptcy Code or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall
for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall from previous
Distribution Dates and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(f)(iv) of this Agreement.
Basis
Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06 of this Agreement
but
which is not an asset of any of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the
amount
by which the amount of interest calculated at the Certificate Interest
Rate
applicable to such Class for such date, determined without regard to the
Pool 1
Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as applicable,
for such date but subject to a cap equal to the applicable Maximum Interest
Rate, exceeds the amount of interest calculated at the Pool 1 Net Funds
Cap,
Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as applicable.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the
effect
that any proposed transfer of Certificates will not (i) cause the assets
of the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor
or the Trustee, respectively.
Bid
Due Date:
As
defined in Section 7.01(d).
Bid
Holder:
As
defined in Section 7.01(d).
Bid
Month:
As
defined in Section 7.01(d).
20
Bid
Price:
As
defined in Section 7.01(d).
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or
made
through book entries by a Clearing Agency as described in Section 3.09;
provided,
that after
the
occurrence of a condition whereupon book-entry registration and transfer
are no
longer permitted and Definitive Certificates are to be issued to Certificate
Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” As of the Closing Date, each Class of LIBOR Certificates
constitutes Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York or, if other than New York or the city in which the
principal office of the Corporate Trust Office of the Trustee is located,
or the
States of Massachusetts, Minnesota or Colorado are closed, or (iii) with
respect
to any Servicer Remittance Date or any Servicer reporting date, the States
specified in the definition of “Business Day” in the related Servicing
Agreement, are authorized or obligated by law or executive order to be
closed.
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate
Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be Xxxxxx Brothers Special Financing Inc.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty
to the
Supplemental Interest Trust pursuant to the terms of the Interest Rate
Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the
Trustee.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
Call
Option Holder:
At any
date of determination, each holder of any NIM Residual Securities (if any
such
NIM Residual Securities have been issued and are outstanding), or if no
NIM
Securities are outstanding, each Holder of a Class X Certificate.
Call
Option Notice:
As
defined in Section 7.01(d).
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
sum of
(i) the amount, if any, by which (x) the sum of (A) Current Interest for
such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date, and (ii) interest on such amount
for
the related Accrual Period at the applicable Certificate Interest
Rate.
21
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
the
forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of
Section
4.04.
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” in
the Preliminary Statement hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency,
or on
the books of a Person maintaining an account with such Clearing Agency
(directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case
of the
Subordinate Certificates, any Applied Loss Amount previously allocated
to such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application
of
Applied Loss Amounts will be increased, sequentially, in order of seniority,
by
an amount (to be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such Distribution Date and (2) the
total
amount of any Subsequent Recovery distributed on such Distribution Date
to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates
are
issued without Certificate Principal Amounts. The Class P Certificates
are
issued with an initial Class P Principal Amount of $100.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates, in the case of REMIC 4, all interests bearing the same class
designation, and, in the case of REMIC 1, REMIC 2 and REMIC 3, all Lower
Tier
Interests, bearing the same class designation.
22
Class
B Certificates:
Collectively, the Class B1 and Class B2 Certificates.
Class
I Shortfalls:
As
defined in Section 10.01(n) hereof. For purposes of clarity, the Class
I
Shortfall for any Distribution Date shall equal the amount payable to the
Swap
Counterparty on such Distribution Date in excess of the amount payable
on the
Class LT4-I interest in the Upper Tier REMIC on such Distribution Date,
all as
further provided in Section 10.01(n) hereof.
Class
LT-R Certificate:
Each
Class LT-R Certificate executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto
as
Exhibit A and evidencing the ownership of the residual interest in REMIC
1.
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8 and Class M9 Certificates.
Class
Notional Amount:
Not
applicable.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to any Class of LIBOR Certificates and any date of determination,
the
aggregate of the Certificate Principal Amounts of all Certificates of
such Class
on such date. With respect to the Class P
Certificates,
the
Class
P
Principal Amount. With respect to the Class X,
Class
LT-R and Class R Certificates, zero. With respect to any Lower Tier Interest,
the initial Class Principal Amount as shown or described in the table
set forth
in the Preliminary Statement to this Agreement for the issuing REMIC,
as reduced
by principal distributed with respect to such Lower Tier Interest and
Realized
Losses allocated to such Lower Tier Interest.
Class
R Certificate:
Each
Class R Certificate executed by the Trustee, and authenticated and delivered
by
the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A
and evidencing the ownership of the Class LT2-R Interest, Class LT3-R Interest
and the residual interest in the Upper Tier REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued
on the
Class X Notional Balance, as described in the Preliminary Statement, but
that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $8,987,637.76 ($8,987,737.76
less $100 of such amount allocated to the Class P Certificates) to the
extent
such amount has not been distributed on an earlier Distribution Date as
part of
the Aggregate Overcollateralization Release Amount.
23
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 (other than Class
LT3-IO)
as specified in the Preliminary Statement hereto.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges
of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
February 28, 2007.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral
Account:
The
account maintained by the Trustee in accordance with the provisions of
Section
5.07(c).
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day
of the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount
of any
Prepayment Interest Shortfalls required to be paid by the Servicers with
respect
to such Distribution Date. The Master Servicer (solely in its capacity
as master
servicer) shall not be responsible for making any Compensating Interest
Payment.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the
real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
24
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock
power in
blank; (ii) the original executed Security Agreement and the assignment
of the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv)
the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi)
executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon
(or in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of
the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee at which, at any particular
time, its corporate trust business with respect to this Agreement shall
be
administered, which office at the date hereof is located at Xxx Xxxxxxx
Xxxxxx,
0xx Xxxxx, Xxxxxx, XX 00000, Attention: Structured Finance—SASCO 2007-BC2,
provided
that for
purposes of surrender of Certificates and final payment theron the Trustee’s
Corporate Trust Office shall be 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000,
Attention: Structured Finance—SASCO 2007-BC2.
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of interests in REMIC
3 or
REMIC 4, as provided in the Preliminary Statement.
Credit
Risk Management Agreement:
Each
loan performance monitoring agreement dated as of the Closing Date, entered
into
by a Servicer and the Credit Risk Manager, identified on Exhibit L attached
hereto.
Credit
Risk Manager:
OfficeTiger Global Real Estate Services Inc., a Delaware corporation, and
its
successors and assigns.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal
to the
product of (a) one twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of
the
related Collection Period, provided,
however,
that
such amount shall not be less than $1,500.00 on each Distribution
Date.
Credit
Risk Manager’s Fee Rate:
0.010%
per annum.
25
Credit
Support Annex:
The
credit support annex to the Swap Agreement and the Interest Rate Cap Agreement
dated as of February 28, 2007, between the Trustee, on behalf of the
Supplemental Interest Trust, the Swap Counterparty and the Cap
Counterparty.
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained
by
dividing (x) the aggregate amount of cumulative Realized Losses incurred
on the
Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period by (y) the Cut-off Date Balance exceeds the applicable
percentages described below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
March
2009 to February 2010
|
1.20%
for the first month, plus
an
additional 1/12th
of
1.50% for each month thereafter
|
|
March
2010 to February 2011
|
2.70%
for the first month, plus
an
additional 1/12th
of
1.50% for each month thereafter
|
|
March
2011 to February 2012
|
4.20%
for the first month, plus
an
additional 1/12th
of
1.25% for each month thereafter
|
|
March
2012 to February 2013
|
5.45%
for the first month, plus
an
additional 1/12th
of
0.70% for each month thereafter
|
|
March
2013 and thereafter
|
6.15%
|
Current
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
aggregate amount of interest accrued at the applicable Certificate Interest
Rate
during the related Accrual Period on the Class Principal Amount of such
Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by a
Servicer pursuant to the related Servicing Agreement.
Custodial
Agreement:
Each
custodial agreement identified on Exhibit K hereto and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodial
Compensation:
With
respect to U.S. Bank National Association, Xxxxx Fargo Bank, N.A. and LaSalle
Bank National Association, and in their respective capacities as a Custodian,
the fees and expenses required to be paid by the Trustee as described in
the
applicable Custodial Agreement.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and
any
successor thereto. The initial Custodians are U.S. Bank National Association,
LaSalle Bank National Association and Xxxxx Fargo Bank, N.A.
Cut-off
Date:
February 1, 2007.
Cut-off
Date Balance:
The
Aggregate Pool Balance as of the Cut-off Date.
26
DBRS:
DBRS,
Inc.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that
the
related Mortgagor is obligated to pay on any Due Date as a result of, or
in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Class of the Subordinate Certificates,
the amount by which (x) the aggregate of Applied Loss Amounts previously
applied
in reduction of the Class Principal Amount thereof exceeds (y) the sum
of (1)
the aggregate of amounts previously reimbursed in respect thereof and (2)
the
amount by which the Class Principal Amount of such Class has been increased
due
to any Subsequent Recovery.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans
are
substituted therefor.
Delinquency
Event:
Any
Distribution Date on which the Rolling Three Month Delinquency Rate as
of the
last day of the immediately preceding calendar month equals or exceeds
41.75% of
the Senior Enhancement Percentage for such Distribution Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage,
the
numerator of which is the aggregate outstanding principal balance of (i)
all
Mortgage Loans 60 days Delinquent or more (including all Mortgage Loans
60 days
Delinquent or more for which the Mortgagor has filed for bankruptcy after
the
Closing Date) and (ii) each Mortgage Loan in foreclosure and all REO Properties
as of the close of business on the last day of such month, and the denominator
of which is the Aggregate Pool Balance as of the close of business on the
last
day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is considered “delinquent” if a monthly
payment has not been received by the close of business on the loan’s due date in
the following month. For example, if a borrower failed to make a monthly
payment
due on December 1 by December 31, that mortgage loan would be considered
less
than 30 days delinquent in payment. If a borrower failed to make a monthly
payment due on November 1 by December 31, that mortgage loan would be considered
to be at least 30 but less than 60 days delinquent in payment.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having
its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the
next
succeeding Business Day.
27
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment
for a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the applicable Servicer or the Trustee
has accepted a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the
next
succeeding Business Day, commencing in March 2007.
Distribution
Date Statement:
As
defined in Section 4.03(a).
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is
due under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies
or
(ii) an account or accounts the deposits in which are insured by the FDIC
to the
limits established by such corporation, provided that any such deposits
not so
insured shall be maintained in an account at a depository institution or
trust
company whose commercial paper or other short term debt obligations (or,
in the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short term
debt
or deposit obligations of such holding company or depository institution,
as the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which
shall be
a “special deposit account”) maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its
fiduciary
capacity, in a manner acceptable to the Trustee and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or
bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent
of the
Trustee, acting in its respective commercial capacity) incorporated or
organized
under the laws of the United States of America or any state thereof and
subject
to supervision and examination by federal or state banking authorities,
so long
as at the time of investment or the contractual commitment providing for
such
investment the commercial paper or other short-term debt obligations of
such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one
of its
two highest long-term rating categories;
28
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investor Protection Corporation jurisdiction or any commercial bank insured
by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to
(a) one
of the two highest short-term credit rating categories of S&P and Xxxxx’x
and (b) the highest short-term rating category of Fitch; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the
Trust
Fund to exceed 20% of the sum of the Aggregate Pool Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published
as being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating
Agency in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest
or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full
faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation,
or
interest-bearing or other security or investment (including those managed
or
advised by the Trustee or any Affiliate thereof), (A) rated in the highest
rating category by each Rating Agency rating such investment or (B) that
would
not adversely affect the then current rating assigned by each Rating Agency
of
any of the Certificates or the NIM Securities and has a short term rating
of at
least “A-1” or its equivalent by each Rating Agency. Such investments in this
subsection (viii) may include money market mutual funds or common trust
funds,
including any fund for which U.S. Bank National Association (the “Bank”) in its
capacity other than as Trustee, the Trustee, the Master Servicer, any NIMS
Insurer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Bank, the Trustee, the Master Servicer, any NIMS Insurer or
any
affiliate thereof charges and collects fees and expenses from such funds
for
services rendered, (y) the Bank, the Trustee, the Master Servicer, any
NIMS
Insurer or any affiliate thereof charges and collects fees and expenses
for
services rendered pursuant to this Agreement, and (z) services performed
for
such funds and pursuant to this Agreement may converge at any time. The
Trustee
specifically authorizes the Bank or an affiliate thereof to charge and
collect
from the Trustee such fees as are collected from all investors in such
funds for
services rendered to such funds (but not to exceed investment earnings
thereon);
29
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets
the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R Certificate,
and any
Offered Certificate which does not have a rating of BBB- or above, BBB
(low) or
above or Baa3 or above.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate, Class M Certificate or Class B Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by each Servicer
satisfying the requirements of the related Servicing Agreement.
Escrow
Account:
Any
account established and maintained by each Servicer pursuant to the related
Servicing Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
30
Xxxxxx
Xxx or FNMA:
Xxxxxx
Mae, f/k/a/ the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
Fieldstone:
Fieldstone Mortgage Company.
Final
Maturity Reserve Account:
The
account created pursuant to Section 5.10 of this Agreement.
Final
Maturity Reserve Amount:
For
each Mortgage Pool and each Distribution Date on and after the Distribution
Date
in March 2017 up to and including the earlier of the Final Scheduled
Distribution Date or the termination of the Trust Fund, if the aggregate
Scheduled Principal Balance of the Mortgage Loans with forty-year original
terms
to maturity is greater than the amount set forth in Schedule C hereto,
the
lesser of (A) the product of (x) the Final Maturity Reserve Rate, (y) the
aggregate outstanding principal balance of the Mortgage Loans with forty-year
original terms to maturity in such Mortgage Pool for that Distribution
Date and
(z) a fraction, the numerator of which is the actual number of days in
the
related Accrual Period and the denominator of which is 360 and (B) the
product
of (a) the Final Maturity Reserve Shortfall for such Distribution Date
and (b) a
fraction, the numerator of which is the Pool Balance for
the
related Mortgage Pool for that Distribution Date
and the
denominator of which is the Aggregate Pool Balance for that Distribution
Date.
For (a) each Mortgage Pool and each Distribution Date prior to the
Distribution Date in March 2017 or (b) each Distribution Date on and after
the Distribution Date in March 2017 for which the aggregate Scheduled Principal
Balance of the forty-year Mortgage Loans does not exceed the aggregate
Scheduled
Principal Balance in Schedule C hereto, zero.
Final
Maturity Reserve Rate:
An
annual rate of 0.80%.
Final
Maturity Reserve Shortfall:
For
each Distribution Date, the lesser of (A) the excess of (i) the aggregate
outstanding principal balance of the Mortgage Loans with forty-year original
terms to maturity for that Distribution Date over (ii) the amounts on deposit
in
the Final Maturity Reserve Account or (B) the excess of (x) the aggregate
Certificate Principal Amount of the Senior Certificates and the Subordinate
Certificates after giving effect to distributions on such Distribution
Date over
(y) the amounts on deposit in the Final Maturity Reserve Account.
Final
Maturity Reserve Trust:
The
corpus of a trust created pursuant to Section 5.10 of this Agreement and
designated as the “Final
Maturity Reserve Trust”
consisting of the Final Maturity Reserve Account, but which is not an asset
of
any REMIC.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date occurring
in March
2037.
31
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that
clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Any
Mortgage Loan (i) originated by Fieldstone or First
Street
in
respect of which the related Mortgagor does not make both the first and
second
payment due to the Seller within the timeframe required under the related
PPTLs,
(ii) originated by the Bank as specified in Section 1.04(e) of the Mortgage
Loan
Sale Agreement in respect of which the related Mortgagor does not make
both the
first and second payment due to the Seller within the time frame required
under
such section or (iii) originated by the Bank specified in Section 1.04(e)
of the
Mortgage Loan Sale Agreement in respect of which the related Mortgagor
does not
make either the first or second payment due to the Seller within the
time frame
required under such section.
First
Street: First Street Financial, Inc.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed
rate of
interest throughout the term of such Note.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan purchased by the Seller
from
the Bank, the excess, if any of the FPD Purchase Price over the Purchase
Price
for such Mortgage Loan.
FPD
Purchase Price:
With
respect to any First Payment Default Mortgage Loan, an amount equal to
the sum
of (a) 101.50%
of the
unpaid principal balance of such Mortgage Loan and (b) accrued interest
thereon
at the applicable Mortgage Rate from the date as to interest was last
paid to
(but not including) the Due Date in the Collection Period immediately
preceding
the related Distribution Date.
Xxxxxxx
Mac or FHLMC:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III
of the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group:
The
Group 1 Senior Certificates or the Group 2 Senior Certificates, as the
context
requires.
32
Group
1 Senior Certificates:
The
Class A1 Certificates.
Group
2 Senior Certificates:
Collectively, the Class A2, Class A3, Class A4 and Class A5
Certificates.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or
giving
any consent pursuant to this Agreement, any Certificate registered in the
name
of the Depositor, the Trustee, the Master Servicer, any Servicer or the
Credit
Risk Manager or any Affiliate thereof shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which
a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee and any NIMS Insurer may request and conclusively rely on
certifications by the Depositor, the Master Servicer, the applicable Servicer
or
the Credit Risk Manager in determining whether any Certificates are registered
to an Affiliate of the Depositor, the Master Servicer, any Servicer or
the
Credit Risk Manager. After a Section 7.01(c) Purchase Event, other than
in
Sections 5.02(b) through (h) and 11.03(a) and (b) and, except in the case
of the
Class LT-R Certificates, Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.09
herein,
all references in this Agreement to “Holder” or “Certificateholder” shall be
deemed to be references to the LTURI-holder, as recorded on the books of
the
Certificate Registrar, as holder of the Lower Tier Uncertificated REMIC
1
Regular Interests.
HomEq:
HomEq
Servicing, or any successor in interest.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of
another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate
of such
other Person, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not
a member
of the immediate family of a Person defined in clause (b) or (c)
above.
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
5.32000%.
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Aggregate Pool
Balance
is less than 10.00% of the Cut-off Date Balance.
Initial
Sale Date:
The
date on which the Mortgage Loan was sold by the Transferor to the Bank,
as
specified in the Mortgage Loan Schedule.
33
Insurance
Policy:
Any
standard hazard insurance policy, flood insurance policy, earthquake insurance
policy or title insurance policy relating to the Mortgage Loans or the
Mortgaged
Properties, to be in effect as of the Closing Date or thereafter during
the term
of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i)
to cover
expenses incurred by or on behalf of any Servicer or Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement dated February 28, 2007 entered into by the
Trustee
on behalf of the Supplemental Interest Trust and the Cap Counterparty,
which
agreement provides for the monthly payment specified therein to the Trustee
(for
the benefit of the Certificateholders) commencing with the Distribution
Date in
April 2008 and ending on the Distribution Date in February 2012, by the
Cap
Counterparty, but subject to the conditions set forth therein together
with any
schedules, confirmations, Credit Support Annex or other agreements relating
thereto, attached hereto as Exhibit N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap
Payment
deposited into the Interest Rate Cap Account, and any investment earnings
thereon.
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the
Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of
the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
Interest
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal
to (a)
the sum of (1) all interest collected (other than Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments on the Mortgage
Loans in
such Mortgage Pool during the related Collection Period by the applicable
Servicers, the Master Servicer or the Trustee (solely in its capacity as
successor master servicer), minus
(x) the
Servicing Fee with respect to such Mortgage Loans in such Mortgage Pool
and (y)
previously unreimbursed Advances due to the Servicers, the Master Servicer
or
the Trustee (solely in its capacity as successor master servicer) to the
extent
allocable to interest and the allocable portion of previously unreimbursed
Servicing Advances with respect to such Mortgage Loans, (2) any amounts
actually
paid by the Servicers with respect to Prepayment Interest Shortfalls and
any
Compensating Interest Payments with respect to such Mortgage Loans and
the
related Prepayment Period, (3) the portion of any Purchase Price (or PPTL
Purchase Price (excluding any PPTL Premium) (or FPD Purchase Price (excluding
any FPD Premiums) payable with respect to a First Payment Default Mortgage
Loan)
or Substitution Amount paid with respect to such Mortgage Loans during
the
related Prepayment Period allocable to interest and (4) all Net Liquidation
Proceeds, Insurance Proceeds, any Subsequent Recoveries and any other recoveries
collected with respect to such Mortgage Loans during the related Prepayment
Period, to the extent allocable to interest, for each Mortgage Pool,
as
reduced by (b)
the
product of (i) the applicable Pool Percentage for such Distribution Date
and
(ii) any other costs, expenses or liabilities reimbursable to the Trustee,
the Master Servicer, each Custodian and each Servicer to the extent provided
in
this Agreement, each Servicing Agreement and each Custodial Agreement;
provided,
however,
that in
the case of the Trustee, such reimbursable amounts to the Trustee payable
from
the Interest Remittance Amount and Principal Remittance Amount may not
exceed
$200,000 during any Anniversary Year. In the event that the Trustee incurs
reimbursable amounts in excess of $200,000, it may seek reimbursement for
such
amounts in subsequent Anniversary Years, but in no event shall more than
$200,000 be reimbursed to the Trustee per Anniversary Year. Notwithstanding
the
foregoing, costs and expenses incurred by the Trustee pursuant to Section
6.14(a) in connection with any transfer of servicing shall be excluded
from the
$200,000 per Anniversary Year limit on reimbursable amounts. For the avoidance
of doubt, (i) the Interest Remittance Amount available on each Swap Payment
Date
for distributions to the Swap Account shall be equal to the Interest Remittance
Amount on the related Distribution Date and (ii) the Interest Remittance
Amount
for each Distribution Date shall be calculated without regard to any
distributions to the Swap Account on the related Swap Payment Date.
34
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Latest
Possible Maturity Date:
The
Distribution Date occurring in March 2042.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
With respect to the first Accrual Period, the Initial LIBOR Rate. With
respect
to each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis
of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if
the
Telerate Page 3750 is not available on such date, the Trustee will obtain
such
rate first
from
Reuters’ “page LIBOR 01,” or if such page is not available, then from
Bloomberg’s page “BBAM.” If any such rate is not published for such LIBOR
Determination Date, LIBOR for such date will be the most recently published
Interest Settlement Rate. In the event that the BBA no longer sets an Interest
Settlement Rate, the Trustee will designate an alternative index that has
performed, or that the Trustee expects to perform, in a manner substantially
similar to the BBA’s Interest Settlement Rate. The Trustee will select a
particular index as the alternative index only if it receives an Opinion
of
Counsel (a copy of which shall be furnished to any NIMS Insurer), which
opinion
shall be an expense reimbursed from the Certificate Account pursuant to
Section
4.04, that the selection of such index will not cause any of the REMICs
to lose
their classification as REMICs for federal income tax purposes.
35
(c) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for
the
relevant Accrual Period, in the absence of manifest error, will be final
and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Class A1, Class A2, Class A3, Class A4, Class A5, Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 or
Class B2
Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each
Accrual
Period for any LIBOR Certificate.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the applicable
Servicer has determined that all amounts that it expects to recover on
behalf of
the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan, if any, including,
without
limitation, foreclosure and rehabilitation expenses, legal expenses and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16
or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff or otherwise, or the
sale
of the related Mortgaged Property if the Mortgaged Property is acquired
in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon
the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates, in each case after giving effect to distributions
on
such Distribution Date and (ii) the aggregate Class Principal Amount of
the
Class M1, Class M2 and Class M3 Certificates immediately prior to such
Distribution Date exceeds (y) the M3 Target Amount.
36
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 79.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates and the Class M1, Class M2 and Class M3 Certificates,
in each case after giving effect to distributions on such Distribution
Date and
(ii) the Class Principal Amount of the Class M4 Certificates immediately
prior
to such Distribution Date exceeds (y) the M4 Target Amount.
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 82.60% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates and the Class M1, Class M2, Class M3 and Class
M4
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the
M5
Target Amount.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 85.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4 and
Class M5 Certificates, in each case after giving effect to distributions
on such
Distribution Date and (ii) the Class Principal Amount of the Class M6
Certificates immediately prior to such Distribution Date exceeds (y) the
M6
Target Amount.
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 87.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Xxxxxxxxxxxxxxxxxxxxx Xxxxx.
00
X0
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class
M5 and Class M6 Certificates, in each case after giving effect to distributions
on such Distribution Date and (ii) the Class Principal Amount of the Class
M7
Certificates immediately prior to such Distribution Date exceeds (y) the
M7
Target Amount.
M7
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 89.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amount
of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class
M5, Class M6 and Class M7 Certificates, in each case after giving effect
to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class M8 Certificates immediately prior to such Distribution Date exceeds
(y) the M8 Target Amount.
M8
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 90.90% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
amount, if any, by which (x) the sum of (i) the aggregate of the Class
Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7 and Class M8 Certificates, in each case
after
giving effect to distributions on such Distribution Date and (ii) the Class
Principal Amount of the Class M9 Certificates immediately prior to such
Distribution Date exceeds (y) the M9 Target Amount.
M9
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 92.90% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and
(b) the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
38
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, two Business Days immediately preceding
such
Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to 1/12th
the
product of (a) the Master Servicing Fee Rate and (b) the outstanding principal
balance of each Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Interest Rate:
The
Pool 1 Maximum Interest Rate, the Pool 2 Maximum Interest Rate or the
Subordinate Maximum Interest Rate, as applicable.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation,
or any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Monthly
Excess Cashflow:
For
each Distribution Date, the aggregate of any remaining Interest Remittance
Amount pursuant to Section 5.02(d)(v) for
such
date, any Principal Distribution Amount remaining pursuant
to Section 5.02(e)(ii)(C), 5.02(e)(iii),
5.02
(e)(iv)(M)
or
5.02(e)(v)
for
such date, and any Aggregate Overcollateralization Release Amount for
such
date.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular
Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured
by
each such Mortgage conveyed, transferred, sold, assigned to or deposited
with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation each Mortgage Loan listed on the Mortgage Loan Schedule, as
amended
from time to time.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of February 1, 2007,
for
the sale of the Mortgage Loans by the Seller to the Depositor.
39
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition
of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information
with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Mortgage Pool in which such Mortgage Loan is included; (vii) the applicable
Servicer servicing such Mortgage Loan and the applicable Servicing Fee
Rate;
(viii) the applicable Custodian with respect to the Mortgage File related
to
such Mortgage Loan; (ix) whether such Mortgage Loan is subject to a Prepayment
Premium for voluntary prepayments by the Mortgagor, the term during which
such
Prepayment Premiums are imposed and the methods of calculation of the Prepayment
Premium; and (x) whether such Mortgage Loan is a Simple Interest Mortgage
Loan.
The Depositor shall be responsible for providing the Trustee and the Master
Servicer with all amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1 or Pool 2.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120
days of
disbursement of the related Mortgage Loan proceeds, or (y) in the case
of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease,
securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread:
With
respect to any Distribution Date, (A) the fraction, expressed as a percentage,
the numerator of which is equal to the product of (i) the amount, if any,
by
which (a) the aggregate of the Interest Remittance Amounts for each Mortgage
Pool for such Distribution Date (as reduced by the aggregate Credit Risk
Manager’s Fee and the Final Maturity Reserve Amount) exceeds (b) the Current
Interest payable with respect to the Certificates for such date and (ii)
twelve,
and the denominator of which is the Aggregate Pool Balance for such Distribution
Date, multiplied
by (B) a
fraction, the numerator of which is thirty and the denominator of which
is the
greater of thirty and the actual number of days in the immediately preceding
calendar month minus
(C)
the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date, plus
(D)
the
product, expressed as a percentage, of (i) the sum of (a) the amount of
any Net
Swap Payment and (b) any Interest Rate Cap Payment received by the Supplemental
Interest Trust for such Distribution Date divided by the Aggregate Pool
Balance
as of the beginning of the related Collection Period and (ii) a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
40
Net
Funds Cap:
The
Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Subordinate Net Funds
Cap,
as the context requires.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds
net of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the
Aggregate
Expense Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of
any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over any amounts paid with respect to such shortfalls by the Servicers
pursuant
to the Servicing Agreements.
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount
of the
payments received by the Servicers and the Master Servicer in the related
Collection Period allocable to interest in respect of Simple Interest Mortgage
Loans, calculated in accordance with the Simple Interest Method, net of
the
related Servicing Fees, over (b) 30 days’ interest at the weighted average (by
principal balance) of the Net Mortgage Rates of the Simple Interest Mortgage
Loans as of the first day of the related Collection Period, as determined
by the
related Servicer, on the aggregate principal balance of such Simple Interest
Mortgage Loans for such Distribution Date, carried to six decimal places,
rounded down, and calculated on the basis of a 360-day year consisting
of twelve
30-day months. For this purpose, the amount of interest received in respect
of
the Simple Interest Mortgage Loans in any month shall be deemed (i) to
include
any Advances of interest made by the related Servicer, the Master Servicer
or
the Trustee (solely in its capacity as successor master servicer) in such
month
in respect of such Simple Interest Mortgage Loans and (ii) to be reduced
by any
amounts paid to the related Servicer, the Master Servicer or the Trustee
(solely
in its capacity as successor master servicer) in such month in reimbursement
of
Advances previously made by the Servicer, the Master Servicer or the Trustee
(solely in its capacity as successor master servicer) in respect of such
Simple
Interest Mortgage Loans.
Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates
of the
Simple Interest Mortgage Loans as of the first day of the related Collection
Period, as determined by the related Servicer, on the aggregate principal
balance of such Simple Interest Mortgage Loans for such Distribution Date,
carried to six decimal places, rounded down, and calculated on the basis
of a
360-day year consisting of twelve 30-day months, over (b) the amount of
the
payments received by the related Servicer or the Master Servicer in the
related
Collection Period allocable to interest in respect of such Simple Interest
Mortgage Loans, calculated in accordance with the Simple Interest Method,
net of
the related Servicing Fees.
41
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall
not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided
in the
Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per
annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans as of the first day of the related Collection Period (not including
for
this purpose Mortgage Loans for which prepayments in full have been received
and
distributed in the month prior to that Distribution Date).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Residual Securities:
Any
preference shares, ownership certificate or other residual certificates
issued
in connection with any NIM Securities.
NIM
Securities:
Any net
interest margin notes (other than any NIM Residual Securities) issued by
a trust
or other special purpose entity, the principal assets of such trust including
the Class P and Class X Certificates and the payments received thereon,
which
principal assets back such notes.
NIMS
Agreement:
Any
agreement pursuant to which the NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection
with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Not
applicable.
Offered
Certificates:
The
Class A1, Class A2, Class A3, Class A4, Class A5, Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7, Class M8 and Class M9
Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
42
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance
to the
Trustee, and which may be in-house or outside counsel to the Depositor,
the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of
any
Residual Certificate or concerning certain matters with respect to ERISA,
or the
taxation, or the federal income tax status, of each REMIC.
Original
Mortgage Loan:
As
described in the Preliminary Statement.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase
price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the
Aggregate
Pool Balance for such Distribution Date exceeds (y) the aggregate Class
Principal Amount of the LIBOR Certificates after giving effect to distributions
on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the
Targeted
Overcollateralization Amount for such Distribution Date exceeds (y) the
Overcollateralization Amount for such Distribution Date, calculated for
this
purpose after giving effect to the reduction on such Distribution Date
of the
Certificate Principal Amounts of the LIBOR Certificates resulting from
the
distribution of the Principal Distribution Amount on such Distribution
Date, but
prior to allocation of any Applied Loss Amount on such Distribution
Date.
Overcollateralization
Floor: An
amount
equal to $3,209,628.69 (which is approximately 0.50% of the Cut-off Date
Balance).
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the applicable Servicer during any Collection Period in addition
to
the Scheduled Payment due on such Due Date, intended by the related Mortgagor
to
be applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the
same
Class as such Certificate. With respect to any LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount
thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class R and Class LT-R Certificates,
the
Percentage Interest evidenced thereby shall be as specified on the face
thereof,
or otherwise be equal to 100%.
43
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii)
hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject
to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 1.
Pool
1
Maximum Interest Rate:
For the
Group 1 Senior Certificates, for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amount of the
Group 2
Senior Certificates has been reduced to zero, an annual rate equal to (a)
the
product, expressed as a percentage, of (1) the amount, if any, by which
the
weighted average of the excess of the maximum “lifetime” Mortgage Rates, as
specified in the related Mortgage Notes for the Pool 1 Mortgage Loans exceeds
the applicable weighted average Aggregate Expense Rate and (2) a fraction,
the
numerator of which is 30 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed by the Swap Counterparty on
the
related Swap Payment Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 1 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 1 as of the beginning
of the
related Collection Period and (2) a fraction, the numerator of which is
360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed to the Swap Counterparty on the related Swap Payment
Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Final
Maturity Reserve Amount for Pool 1 for such Distribution Date divided by
the
Pool Balance for Pool 1 as of the beginning of the related Collection Period
and
(2) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
Pool
1
Net Funds Cap:
For the
Group 1 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the aggregate Class Principal Amount of the
Group 2
Certificates has been reduced to zero, a per annum rate equal to (a) a
fraction,
expressed as a percentage, the numerator of which is the product of (1)
the
excess, if any, of (i) the Pool 1 Optimal Interest Remittance Amount for
such
date over (ii) the sum of (x) any Net Swap Payment or Swap Termination
Payment
(not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
on
the related Swap Payment Date allocable to Pool 1 (based on the applicable
Pool
Percentage) and (y) any Final Maturity Reserve Amount for Pool 1 for such
Distribution Date and (2) 12, and the denominator of which is the Pool
Balance
for Pool 1 as of the first day of the related Collection Period (excluding
for
this purpose any Mortgage Loans in Pool 1 for which any Principal Prepayments
in
full have been deposited into the Collection Account and distributed therefrom
in accordance with Section 5.02 during the month prior to such Distribution
Date), multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual Period
related
to such Distribution Date.
44
Pool
1
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 1 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 1 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any
Mortgage
Loans in Pool 1 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to such Distribution Date).
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 2.
Pool
2
Maximum Interest Rate:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, an annual rate equal to (a) the
product,
expressed as a percentage, of (1) the amount, if any, by which the weighted
average of the excess of the maximum “lifetime” Mortgage Rates, as specified in
the related Mortgage Notes for the Pool 2 Mortgage Loans exceeds the applicable
weighted average Aggregate Expense Rate and (2) a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days in
the
Accrual Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment
Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 2 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 2 as of the beginning
of the
related Collection Period and (2) a fraction, the numerator of which is
360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed to the Swap Counterparty on the related Swap Payment
Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Final
Maturity Reserve Amount for Pool 2 for such Distribution Date divided by
the
Pool Balance for Pool 2 as of the beginning of the related Collection Period
and
(2) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
45
Pool
2
Net Funds Cap:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, a per annum rate equal to (a) a
fraction,
expressed as a percentage, the numerator of which is the product of (1)
the
excess, if any, of (i) the Pool 2 Optimal Interest Remittance Amount for
such
date over (ii) the sum of (x) any Net Swap Payment or Swap Termination
Payment
(not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
on
the related Swap Payment Date allocable to Pool 2 (based on the applicable
Pool
Percentage) and (y) any Final Maturity Reserve Amount for Pool 2 for such
Distribution Date and (2) 12, and the denominator of which is the Pool
Balance
for Pool 2 as of the first day of the related Collection Period (excluding
for
this purpose any Mortgage Loans in Pool 2 for which any Principal Prepayments
in
full have been deposited into the Collection Account and distributed therefrom
in accordance with Section 5.02 during the month prior to such Distribution
Date), multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual Period
related
to such Distribution Date.
Pool
2
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 2 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 2 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any
Mortgage
Loans in Pool 2 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to such Distribution Date).
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal
Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction,
expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Pool Balance
for such date.
Pool
Subordinate Amount:
As to
each Mortgage Pool and any Distribution Date, the excess of the Pool Balance
for
such Mortgage Pool as of the first day of the immediately preceding Collection
Period over (i) the Class Principal Amount of the Group 1 Senior Certificates
(in the case of Pool 1) or (ii) the aggregate Class Principal Amounts of
the
Group 2 Senior Certificates (in the case of Pool 2) immediately prior to
the
related Distribution Date.
PPTL
Premium:
With
respect to any First Payment Default Mortgage Loan, the excess, if any,
of the
PPTL Purchase Price over the Purchase Price.
PPTL
Purchase Price:
The
purchase price paid for a First Payment Default Mortgage Loan which is
required
to be repurchased by Fieldstone
or First
Street
pursuant
to the related PPTL.
PPTLs:
With
respect to any Mortgage Loan, each of the applicable purchase price and
terms
letters between (i) the Bank and Fieldstone and (ii) the Bank and First
Street.
46
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan,
the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee, as applicable, in the case of Principal
Prepayments in full) on the outstanding principal balance of such Mortgage
Loan
immediately prior to such prepayment over (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Period:
(a)
With respect to any Distribution Date and any Principal Prepayment in
part in
respect of any Mortgage Loan serviced by a Servicer, the calendar month
immediately preceding the month in which such Distribution Date occurs;
with
respect to any Principal Prepayment in full in respect of any Mortgage
Loan
serviced by HomEq, the period from the sixteenth (16th)
day of
the preceding calendar month through the fifteenth (15th)
day of
the calendar month in which the Distribution Date occurs (except in the
case of
the Distribution Date in March 2007, for which the related Prepayment
Period
will be the period from February 1, 2007 through March 15, 2007), (b)
with
respect to any Distribution Date and any Principal Prepayment in full
in respect
of any Mortgage Loan serviced by Aurora, the period from the seventeenth
(17th)
day of
the preceding calendar month through the sixteenth (16th)
day of
the calendar month in which the Distribution Date occurs (except in the
case of
the Distribution Date in March 2007, for which the related Prepayment
Period
will be the period from February 1, 2007 through March 16, 2007) and
(c) with
respect to any Distribution Date and any Principal Prepayment in full
in respect
of any Mortgage Loan serviced by Xxxxx Fargo, the period from the fourteenth
(14th)
day of
the preceding calendar month through the thirteenth
(13th)
day of
the calendar month in which the Distribution Date occurs (except in the
case of
the Distribution Date in March 2007, for which the related Prepayment
Period
will be the period from February 1, 2007 through March 13,
2007).
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage
Loan.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal
to the
Principal Remittance Amount for such Mortgage Pool for such date minus
the
Aggregate Overcollateralization Release Amount, if any, allocable to such
Mortgage Pool, for such Distribution Date (based on the applicable Senior
Proportionate Percentage).
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other
recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of
the
Mortgage Note or the related Servicing Agreement.
Principal
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, (a) the sum of
(i) all
principal collected (other than Payaheads and Prepayment Premiums) or advanced
in respect of Scheduled Payments on the Mortgage Loans in such Mortgage
Pool
during the related Collection Period whether by the applicable Servicers,
the
Master Servicer or the Trustee (solely in its capacity as successor Master
Servicer) (less unreimbursed Advances due to the Master Servicer, any Servicer
or the Trustee with respect to the related Mortgage Loans, to the extent
allocable to principal), (ii) all Principal Prepayments in full or in part
received during the related Prepayment Period on the Mortgage Loans in
such
Mortgage Pool, (iii) the outstanding principal balance of each Mortgage
Loan
(excluding any FPD Premium) in such Mortgage Pool that was purchased from
the
Trust Fund by the Seller during the related Prepayment Period or the NIMS
Insurer (in the case of certain Mortgage Loans 90 days or more delinquent)
from
such Mortgage Pool, (iv) the portion of the Purchase Price (or the PPTL
Purchase
Price (excluding any PPTL Premium) or FPD Purchase Price (excluding any
FPD
Premium) payable with respect to a First Payment Default Mortgage Loan)
or the
portion of any Substitution Amount paid with respect to any Deleted Mortgage
Loan in such Mortgage Pool during the related Prepayment Period allocable
to
principal and (v) all Net Liquidation Proceeds, Insurance Proceeds, any
Subsequent Recovery and other recoveries collected with respect to the
Mortgage
Loans in such Mortgage Pool during the related Prepayment Period, to the
extent
allocable to principal, as reduced by (b) to the extent not reimbursed
from
amounts otherwise allocable to interest, the related Pool Percentage for
such
date of any other costs, expenses or liabilities reimbursable to the Trustee,
the Master Servicer, each Custodian and each Servicer to the extent provided
in
this Agreement, each Servicing Agreement and each Custodial Agreement and,
with
respect to the Trustee, to the extent the Interest Remittance Amount is
less
than amounts reimbursable to the Trustee pursuant to Section 4.04(b)(i),
the
product of (x) the applicable Pool Percentage for such Distribution Date
and (y)
any amounts reimbursable during the related Anniversary Year to the Trustee
therefrom and not reimbursed from the Interest Remittance Amount, or otherwise;
provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 be reimbursed
to the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and
expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with
any
transfer of servicing shall be excluded from the $200,000 per Anniversary
Year
limit on reimbursable amounts. For the avoidance of doubt, (i) the Principal
Remittance Amount available on each Swap Payment Date for distributions
to the
Swap Account shall be equal to the Principal Remittance Amount on the related
Distribution Date and (ii) the Principal Remittance Amount for each Distribution
Date shall be calculated without regard to any distributions to the Swap
Account
on the related Swap Payment Date.
47
Private
Placement Memorandum:
The
private placement memorandum dated February 26, 2007, relating to the Class
B
Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between
a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated February 26, 2007, together with the accompanying
prospectus dated February 20, 2007, relating to the Offered
Certificates.
48
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan; (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but
not
including) the Due Date in the Collection Period immediately preceding
the
related Distribution Date; (c) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal,
state or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; and (d) any unreimbursed Servicing Advances
with respect to such Mortgage Loan. The Master Servicer, each Servicer,
each
Custodian (or the Trustee, if applicable) shall be reimbursed from the
Purchase
Price for any Mortgage Loan or related REO Property for any Advances made
or
other amounts advanced with respect to such Mortgage Loan that are reimbursable
to the Master Servicer or such Servicer under this Agreement or the related
Servicing Agreement (or to the Trustee, if applicable), together with any
accrued and unpaid compensation due to the Master Servicer, any Servicer,
each
Custodian or the Trustee hereunder or thereunder.
Purchaser
Call Option Notice:
As
defined in Section 7.01(d).
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring
a
minimum, fixed or floating rate of return on investments of such funds,
which
contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term
debt is
rated by each Rating Agency in one of its two highest rating categories
or, if
such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee or Master Servicer, as applicable, may exercise all of
the
rights under such contract or surety bond without the necessity of taking
any
action by any other Person;
(iii) provide
that if at any time the then current credit standing of the obligor under
such
guaranteed investment contract is such that continued investment pursuant
to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the Trustee or Master Servicer, as
applicable, shall terminate such contract without penalty and be entitled
to the
return of all funds previously invested thereunder, together with accrued
interest thereon at the interest rate provided under such contract to the
date
of delivery of such funds to the Trustee;
(iv) provide
that the interest of the Trustee or Master Servicer, as applicable, therein
shall be transferable to any successor trustee or master servicer hereunder;
and
49
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be,
not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write
the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer
will not
adversely affect the ratings of the Certificates.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant
to the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan,
an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess
of, and
not more than 5% less than, the outstanding Scheduled Principal Balance
of the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage
Rate on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage
Rate not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv)
if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, has a gross margin equal
to or
greater than the gross margin of the Deleted Mortgage Loan, (vi) is not
a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the
next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity
not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later
than the
Final Scheduled Distribution Date; (x) is current as of the date of
substitution, (xi) has a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage
Loan as
of such date, (xii) has been underwritten by the Transferor in accordance
with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan,
(xiii) has a risk grading determined by the Seller at least equal to the
risk
grading assigned on the Deleted Mortgage Loan, (xiv) is secured by the same
property type as the Deleted Mortgage Loan, (xv) conforms to each representation
and warranty applicable to the Deleted Mortgage Loan made in the related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position
as the
Deleted Mortgage Loan, (xvii) contains provisions covering the payment
of
Prepayment Premium by the Mortgagor for early prepayment of the Mortgage
Loan at
least as favorable as the Deleted Mortgage Loan and (xviii) for any Mortgage
Loan to be substituted into Pool 1, has an original Scheduled Principal
Balance
within the maximum dollar amount limitations prescribed by Xxxxxx Xxx for
conforming one-to-four family first and second lien residential mortgaged
properties. In the event that one or more mortgage loans are substituted
for one
or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall
be determined on the basis of aggregate Scheduled Principal Balances, the
Mortgage Rates described in clause (ii) hereof shall be determined on the
basis
of weighted average Mortgage Rates, the risk gradings described in clause
(xiii)
hereof shall be satisfied as to each such mortgage loan, the terms described
in
clause (ix) hereof shall be determined on the basis of weighted average
remaining term to maturity; provided,
that
the
stated maturity date of any Qualifying Substitute Mortgage Loan shall not
be
later than the Final Scheduled Distribution Date, the Loan-to-Value Ratios
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xv) hereof must be
satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as
the case
may be.
50
Rating
Agency:
Each of
DBRS, Fitch, Xxxxx’x and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
minus
(ii)
Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Master Servicer or any Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Class of Book-Entry Certificates and any Distribution Date,
the
close of business on the Business Day immediately preceding such Distribution
Date. With respect to any Class of Definitive Certificates and any Distribution
Date, the last Business Day of the month immediately preceding the month
in
which the Distribution Date occurs (or, in the case of the first Distribution
Date, the Closing Date).
Regular
Interests Purchase Option:
As
defined in Section 7.01(c).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and
all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the
same may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Related
Senior Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date on or after the Stepdown Date
and
for as long as a Trigger Event is not in effect, an amount equal to the
lesser
of (x) the Class Principal Amount of the Group 1 Senior Certificates (with
respect to Pool 1) or the aggregate Class Principal Amounts of the Group
2
Senior Certificates (with respect to Pool 2) immediately prior to such
date and
(y) the product of (a) the Senior Principal Distribution Amount and (b)
the
related Senior Proportionate Percentage, in each case for such
date.
51
Related
Senior Priority:
With
respect to each of Group 1 Senior Certificates and the Group 2 Senior
Certificates, the priority of distribution on the Senior Certificates relating
to such Groups as described in Sections 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3),
respectively.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit S
attached
hereto. Multiple parties can have responsibility for the same Relevant
Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Paying Agent, the Trustee, the Credit Risk Manager, each
Custodian
or each Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in
the
amount of interest collectible thereon as a result of application of the
Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related Collection Period is less than interest accrued
thereon for the applicable one-month period at the Mortgage Rate without
giving
effect to such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest
rates
on the Lower Tier Interests in REMIC 3 (other than an interest-only regular
interest), weighted in proportion to their Class Principal Amounts as of
the
beginning of the related Accrual Period, multiplied by (ii) an amount equal
to
(a) 30, divided by (b) the actual number of days in the Accrual
Period.
REMIC
4:
As
described in the Preliminary Statement.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMIC
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate
equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex C-1 to the Prospectus Supplement,
(ii) 2, and (iii) the quotient of (a) the actual number of days in the
related
Accrual Period divided by (b) 30.
52
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan
or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less
than
0.25%, the amount, if any by which (a) the product of 1.00% and the Aggregate
Pool Balance for such date exceeds (b) the amount on deposit in the Basis
Risk
Reserve Fund immediately prior to such date. With respect to any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25%,
the
amount, if any, by which (i) $1,000 exceeds the amount on deposit in the
Basis
Risk Reserve Fund immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class
of
Offered Certificates, Class B1 Certificates and Class B2 Certificates has
been
reduced to zero, the Required Reserve Fund Deposit shall be zero.
Residual
Certificate:
Any
Class R or Class LT-R Certificate.
Responsible
Officer or responsible officer:
When
used with respect to the Trustee (including in its capacity as Paying Agent),
any vice president, assistant vice president, the secretary, any assistant
secretary, or any officer, working in its Corporate Trust Office, or corporate
trust group, as applicable, and having responsibility for the administration
of
this Agreement, and any other officer to whom a matter arising under this
Agreement may be referred.
Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R
Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and
two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
53
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party
that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time
to
time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date, whenever received) and, in the case of an REO Property, an
amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan (other than a Simple Interest Mortgage
Loan) as
of any Distribution Date, the principal balance of such Mortgage Loan at
the
close of business on the Cut-off Date after giving effect to principal
payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date, and on or before the
Due Date
in the related Collection Period, whether or not received from the Mortgagor
or
advanced by any Servicer or the Master Servicer, and all amounts allocable
to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to
the
extent identified and applied prior to or during the related Prepayment
Period)
and (ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee
(reduced
by any amount applied as a reduction of principal on the Mortgage Loan).
With
respect to any Mortgage Loan as of the Cut-off Date, the principal balance
of
such Mortgage Loan as specified in the Mortgage Loan Schedule. The Scheduled
Principal Balance of any Liquidated Mortgage Loan shall be zero. In the
case of
a Simple Interest Mortgage Loan, references herein to such Mortgage Loan’s
Scheduled Principal Balance shall mean its actual unpaid principal balance.
The
actual unpaid principal balance of a Simple Interest Mortgage Loan with
respect
to any Distribution Date shall be determined by subtracting from such Mortgage
Loan’s unpaid principal balance as of the end of the preceding Collection Period
the amount of the borrower’s fixed monthly payment for the related Collection
Period that is not allocated to the payment of interest applying the Simple
Interest Method.
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the
related
Cooperative Shares and the originator of the related Mortgage Note that
defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
54
Seller
Remittance Amount:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Senior
Certificate:
Any
Class A1, Class A2, Class A3, Class A4 or Class A5 Certificate.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of
the
Subordinate Certificates and the Overcollateralization Amount (which amount,
for
purposes of this definition only, shall not be less than zero and assuming
for
purposes of this definition that the Principal Distribution Amount has
been
distributed on such Distribution Date and no Trigger Event has occurred)
and the
denominator of which is the Aggregate Pool Balance for such Distribution
Date,
in each case after giving effect to distributions on such Distribution
Date.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date,
the
lesser of (x) the aggregate Principal Distribution Amount for both Mortgage
Pools and (y) the amount, if any by which (A) the aggregate Class Principal
Amount of the Senior Certificates immediately prior to such Distribution
Date
exceeds (B) the Senior Target Amount.
Senior
Proportionate Percentage:
With
respect to Pool 1 and any Distribution Date, the fraction, expressed as
a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 1
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
With respect to Pool 2 and any Distribution Date, the fraction, expressed
as a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 2
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 61.70%
and
(ii) the Aggregate Pool Balance for such Distribution Date determined
as of the
last day of the related Collection Period and (b) the amount, if any,
by which
(i) the Aggregate Pool Balance for such Distribution Date determined
as of the
last day of the related Collection Period exceeds (ii) the Overcollateralization
Floor.
Servicer
Remittance Date:
The day
in each calendar month on which each Servicer is required to remit payments
to
the Collection Account, as specified in the related Servicing Agreement,
which
is the 18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day).
Servicers:
As of
the Closing Date, HomEq, Xxxxx Fargo and Aurora and any successors in interest.
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments
on the
Mortgage Loans or any other assets of the Trust Fund by an entity that
meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall
have the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
55
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by a Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, inspection, restoration
and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property and
fire and
hazard insurance coverage and (e) any losses sustained by a Servicer with
respect to the liquidation of the Mortgaged Property.
Servicing
Agreement:
Each
servicing agreement, subservicing agreement or reconstituted servicing
agreement
identified on Exhibit E hereto, dated as of February 1, 2007, among the
Seller,
the Master Servicer and one of the above-named Servicers, and any other
servicing agreement entered into between a successor servicer and the Seller
pursuant to the terms of this Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the Scheduled Principal
Balance of such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer,
each
Custodian, the Master Servicer, the Paying Agent and the Trustee, that
is
participating in the servicing function within the meaning of Regulation
AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Servicing
Officer:
Any
officer of the related Servicer involved in or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on
a list
of servicing officers furnished by the related Servicer to the Master Servicer
or Seller upon request, as such list may from time to time be
amended.
Simple
Interest Method:
With
respect to a Simple Interest Mortgage Loan, the method of allocating a
payment
to principal and interest, pursuant to which the portion of such payment
that is
allocated to interest is equal to the product of the applicable rate of
interest
multiplied by the unpaid principal balance multiplied by the period of
time
elapsed since the preceding payment of interest was made and divided by
either
360 or 365, as specified in the related Mortgage Note and the remainder
of such
payment is allocated to principal.
56
Simple
Interest Mortgage Loan:
Any
Mortgage Loan specified as a “DSI Loan” in the Mortgage Loan Schedule attached
hereto as Schedule A. As of the Closing Date, there are no Simple Interest
Mortgage Loans included in the Trust Fund.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (i) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each
been
reduced to zero or (ii) the later to occur of (x) the Distribution Date
in March
2010 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments
or other
recoveries in respect of the Mortgage Loans during the related Collection
Period
but before giving effect to distributions on the Certificates on such
Distribution Date) is greater than or equal to 38.30%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one
or
more discrete functions identified in Item 1122(d) of Regulation AB with
respect
to the Mortgage Loans under the direction or authority of the Paying Agent,
the
Trustee, the Master Servicer, a Custodian, a Servicer or the Credit Risk
Manager.
Subordinate
Certificate:
Any
Class M Certificate or Class B Certificate.
Subordinate
Maximum Interest Rate:
For (i)
the Subordinate Certificates; (ii) the Group 1 Senior Certificates, with
respect
to each Distribution Date after the Distribution Date on which the aggregate
Class Principal Amount of the Group 2 Senior Certificates has been reduced
to
zero; and (iii) the Group 2 Senior Certificates, with respect to each
Distribution Date after the Distribution Date on which the Class Principal
Amount of the Group 1 Senior Certificates has been reduced to zero; the
weighted
average of the Pool 1 Maximum Interest Rate and the Pool 2 Maximum Interest
Rate
for such Distribution Date, weighted on the basis of (i) in the case of
any
Distribution Date on or before the date on which the aggregate Class Principal
Amount of the Senior Certificates relating to any Mortgage Pool has been
reduced
to zero, the Pool Subordinate Amount and (ii) for any Distribution Date
thereafter, such weighting shall be on the basis of the Pool Balance of
each
Mortgage Pool.
Subordinate
Net Funds Cap:
With
respect to any Distribution Date, an amount equal to the weighted average
of the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis
of the
Pool Subordinate Amount for each Mortgage Pool; provided,
however,
that on
any Distribution Date after which the aggregate Class Principal Amount
of the
Senior Certificates relating to any Mortgage Pools has been reduced to
zero,
such weighting shall be on the basis of the Pool Balance of each Mortgage
Pool.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class B1 and Class B2 Certificates, sequentially, in that
order.
57
Subsequent
Recovery:
Any
amount recovered by a Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan with respect to which a Realized Loss was incurred
after the liquidation or disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer,
and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any subservicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon, any related unpaid Advances or Servicing Advances or
unpaid
Servicing Fees and the amount of any costs and damages incurred by the
Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of
such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the right to receive the Class X Distributable Amount as provided
in Section 5.02(f)(vi), the Class LT4-I interest in REMIC 4 and the right
to
receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement dated February 28, 2007 entered into by the
Trustee
on behalf of the Supplemental Interest Trust and the Swap Counterparty,
which
agreement provides for, among other things, a Net Swap Payment to be paid
pursuant to the conditions provided therein, together with any schedules,
confirmations, Credit Support Annex or other agreements relating thereto,
attached hereto as Exhibit O.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the
sum of
any Net Swap Payment and any Swap Termination Payment deposited into the
Swap
Account, and any interest earnings thereon.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement,
and
any successor in interest or assigns. Initially, the Swap Counterparty
shall be
Xxxxxx Brothers Special Financing Inc.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default
with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a Termination Event of Illegality or Tax Event as such
terms
are defined in the Swap Agreement) with respect to which the Swap Counterparty
is the sole Affected Party or an Additional Termination Event with respect
to
which the Swap Counterparty is the sole Affected Party has
occurred.
58
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and
the
Accrual Period relating to such Distribution Date), the product of (i)
the
Floating Rate Option (as defined in the Swap Agreement) for the related
Swap
Payment Date as calculated by the Swap Counterparty and furnished to the
Trustee, (ii) two, and (iii) the quotient of (a) the actual number of days
in
the Accrual Period for the LIBOR Certificates and (b) 30.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 5.09.
Swap
Replacement Receipts Account:
As
defined in Section 5.09.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the
Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest
Trust, as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid
amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished
to the
Trustee.
Swap
Termination Receipts:
As
defined in Section 5.09.
Swap
Termination Receipts Account:
As
defined in Section 5.09.
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Pool
Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
For any
Distribution Date prior to the Stepdown Date, an amount equal to $8,987,737.76
(or approximately 1.40% of the Cut-off Date Balance). For any Distribution
Date
and provided a Trigger Event is not in effect, an amount equal to the greater
of
(i) the lesser of (a) $8,987,737.76 (or approximately 1.40% of the Cut-off
Date
Balance) and (b) 2.80% of the Aggregate Pool Balance after giving effect
to
distributions on such Distribution Date and (ii) the Overcollateralization
Floor. With respect to any Distribution Date on or after the Stepdown Date
and
provided a Trigger Event is in effect, an amount equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution
Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Reuters Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on
that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Event:
As
defined in the Swap Agreement.
59
Termination
Price:
As
defined in Section 7.01.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the aggregate of the Interest
Remittance Amounts for such date; (ii) the aggregate of the Principal Remittance
Amounts for such date; and (iii) all Prepayment Premiums collected during
the
related Prepayment Period.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date
if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the Structured Asset Securities Corporation Mortgage Loan Trust
2007-BC2 created pursuant to this Agreement, consisting of the Mortgage
Loans,
the assignment of the Depositor’s rights under the Transfer Agreement, the
Mortgage Loan Sale Agreement and each Servicing Agreement, such amounts
as shall
from time to time be held in the Collection Account, the Certificate Account,
any Custodial Account and any Escrow Account, the Basis Risk Reserve Fund,
the
Insurance Policies, any REO Property and the other items referred to in,
and
conveyed to the Trustee under, Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as
Trustee,
or any successor in interest, or if any successor trustee shall be appointed
as
herein provided, then such successor in interest or successor trustee,
as the
case may be.
Trustee
Fee:
As to
any Distribution Date, any investment earnings from amounts on deposit
in the
Certificate Account.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from
time to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as
amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any LIBOR Certificate, the aggregate
of all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid
from
previous Distribution Dates, plus interest accrued thereon for the related
Accrual Period at the applicable Certificate Interest Rate (calculated
without
giving effect to the applicable Net Funds Cap) but limited to a rate no
greater
than the applicable Maximum Interest Rate.
60
Upper
Tier REMIC:
REMIC
4.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated
to any
Certificate for purposes of the voting provisions of this Agreement. At
all
times during the term of this Agreement, 97.00% of all Voting Interests
shall be
allocated to the LIBOR Certificates. Voting Interests shall be allocated
among
the Classes of LIBOR Certificates based on the product of (i) 97.00% and
(ii)
the fraction, expressed as a percentage, the numerator of which is the
aggregate
Class Principal Amount of all Certificates of that Class then outstanding
and
the denominator of which is the aggregate Class Principal Amount of all
Certificates then outstanding. At all times during the term of this Agreement,
1% of all Voting Interests shall be allocated to each of the Class P, Class
R
and Class X Certificates while they remain outstanding. Voting Interests
shall
be allocated among the other Classes of Certificates (and among the Certificates
within each such Class) in proportion to their Class Principal Amounts
(or
Certificate Principal Amounts) or Percentage Interests. In the case of
the
purchase by the Master Servicer of the Lower Tier REMIC 1 Uncertificated
Regular
Interests pursuant to a Section 7.01(c) Purchase Event, the LTURI-holder
shall
be allocated 100% of the Voting Interests and upon such purchase any provision
in this Agreement which requires a vote by, a direction or notice given
by, an
action taken by, a request in writing by or the consent of, any percentage
of
the Holders of the Certificates or any Class of Certificates may be exercised
by
the LTURI-holder.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A.
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Trustee as supplied
to the
Trustee by the Master Servicer or the Swap Counterparty. The Trustee shall
not
be required to recompute, verify or recalculate the information supplied
to it
by the Master Servicer, any Servicer, the Swap Counterparty or the Credit
Risk
Manager.
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
Accrued
interest, if any, on any LIBOR Certificate shall be calculated based upon
a
360-day year and the actual number of days in each Accrual Period. Accrued
interest on the Class X Certificate and any Class of Lower Tier Interest
shall
be calculated based upon a 360-day year consisting of twelve 30-day months.
61
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments
of
principal and interest received on or with respect to the Mortgage Loans
on and
after the Cut-off Date (other than payments of principal and interest due
on or
before such date), and all such payments due after such date but received
prior
to such date and intended by the related Mortgagors to be applied after
such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account and all amounts from time to time credited to and
the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account (exclusive
of investment earnings thereon), any Custodial Accounts and all amounts
from
time to time credited to and the proceeds of the Custodial Accounts, any
Escrow
Account established pursuant to Section 9.06 and any Basis Risk Reserve
Fund
established pursuant to Section 5.06 and all amounts from time to time
credited
to and the proceeds of each such account, any REO Property and the proceeds
thereof, the Depositor’s rights under any Insurance Policies related to the
Mortgage Loans, the Depositor’s security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in
trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated
and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Interest
Rate
Cap Agreement shall be delivered to the Trustee. In connection therewith,
the
Depositor hereby directs the Trustee (solely in its capacity as such) and
the
Trustee is hereby authorized to execute and deliver the Swap Agreement
and the
Interest Rate Cap Agreement (each on behalf of the Supplemental Interest
Trust)
for the benefit of, the Certificateholders. The Seller, the Master Servicer,
the
Depositor, the Servicers and the Certificateholders (by their acceptance
of such
Certificates) acknowledge and agree that the Trustee is executing and delivering
the Swap Agreement and the Interest Rate Cap Agreement solely in its capacity
as
Trustee of the Supplemental Interest Trust and the Trust Fund and not in
its
individual capacity. The Trustee shall have no duty or responsibility to
enter
into any other swap agreement or interest rate cap agreement upon the expiration
or termination of the Swap Agreement or the Interest Rate Cap
Agreement.
62
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage
Loan
Sale Agreement, including all rights of the Seller under each Servicing
Agreement and each Transfer Agreement (including the rights to enforce
the
related Transferor’s obligation to repurchase First Payment Default Mortgage
Loans pursuant to the related PPTLs), but only to the extent assigned under
the
Mortgage Loan Sale Agreement. The Trustee hereby accepts such assignment,
and
shall be entitled to exercise all the rights of the Depositor under the
Mortgage
Loan Sale Agreement as if, for such purpose, it were the Depositor.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller
has so
represented and recognized in the Mortgage Loan Sale Agreement) that it
is not
intended that any Mortgage Loan to be included in the Trust Fund be (i)
a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance
does not
and is not intended to result in the creation or assumption by the Trustee
of
any obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(b) In
connection with such transfer and assignment, the Depositor does hereby
deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the applicable Custodian acting on the Trustee’s behalf, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, or in blank (in each
case,
with all necessary intervening endorsements, as applicable) or with respect
to
any lost Mortgage Note, a lost note affidavit stating that the original
Mortgage
Note was lost, misplaced or destroyed, together with a copy of the related
Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the
original
recorded power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
or
power of attorney with evidence of recording thereon on or prior to the
Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage or
power of
attorney has been lost, the Depositor shall deliver or cause to be delivered
to
the Trustee (or the applicable Custodian), in the case of a delay due to
recording, a true copy of such Mortgage or power of attorney, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage or power of attorney delivered
to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such Mortgage or power of attorney has been forwarded to the public recording
office, or, in the case of a Mortgage or power of attorney that has been
lost, a
copy thereof (certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel acceptable to the Trustee
and the
Depositor that an original recorded Mortgage or power of attorney is not
required to enforce the Trustee’s interest in the Mortgage Loan;
63
(iv) the
original of each assumption, modification or substitution agreement, if
any,
relating to the Mortgage Loans, or, as to any assumption, modification
or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded
to the
public recording office;
(v) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or
(B) to
“U.S. Bank National Association, as Trustee of the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-BC2,” without recourse;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice
of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the Transferor, or,
in the
case of an Intervening Assignment that has been lost, a written Opinion
of
Counsel acceptable to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(vii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy (or, in lieu thereof, a commitment to
issue
such title insurance policy with an original or certified copy of such
title
insurance policy to follow as soon after the Closing Date as reasonably
practicable) or attorney’s opinion of title and abstract of title;
(viii) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered
on or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with
an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to
the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such document has been forwarded to the public recording office;
64
(ix) with
respect to any Cooperative Loan, the Cooperative Loan Documents;
and
(x) with
respect to any manufactured housing contract, any related manufactured
housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee,
for the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(c) (i) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed
to the
Trustee (which must be Independent counsel) acceptable to the Trustee and
the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall direct the applicable Servicer to submit each Assignment of Mortgage
for
recording upon the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event
more
than three months thereafter except to the extent delays are caused by
the
applicable recording office), the Master Servicer, at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall direct
to
be properly recorded by each Servicer in each public recording office where
the
related Mortgages are recorded each Assignment of Mortgage referred to
in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer shall direct the
applicable Servicer, at the expense of the Depositor, to take such actions
as
are necessary to cause the Trustee to be clearly identified as the owner
of each
such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
With respect to each Cooperative Loan, the Master Servicer, at the expense
of
the Depositor and with the cooperation of the applicable Servicer, shall
direct
such Servicer to take such actions as are necessary under applicable law
in
order to perfect the interest of the Trustee in the related Mortgaged
Property.
(d) In
instances where a Title Insurance Policy is required to be delivered to
the
Trustee or the applicable Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
65
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off
Date
and prior to the Closing Date, the Depositor, in lieu of delivering the
above
documents, herewith delivers to any NIMS Insurer and the Trustee, or to
the
applicable Custodian on behalf of the Trustee, an Officer’s Certificate which
shall include a statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the Collection
Account
pursuant to Section 4.01 have been so deposited. All original documents
that are
not delivered to the Trustee or the applicable Custodian on behalf of the
Trustee shall be held by the Master Servicer or the applicable Servicer
in trust
for the benefit of the Trustee and the Certificateholders.
(f) The
issuing entity is hereby named Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2.
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust Fund.
|
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or
by the
applicable Custodian on its behalf of the Mortgage Files pertaining to
the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review
thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee,
under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of
the
Trustee, will execute and deliver to the Depositor, the Master Servicer,
the
Trustee and any NIMS Insurer on the Closing Date an Initial Certification
in the
form annexed hereto as Exhibit B-1 (or in the form annexed to the Custodial
Agreements as Exhibit B-1, as applicable).
(b) Within
45
days after the Closing Date, the Trustee or the Custodians on behalf of
the
Trustee, will, for the benefit of Holders of the Certificates, review each
Mortgage File to ascertain that all required documents set forth in Section
2.01
have been received and appear on their face to contain the requisite signatures
by or on behalf of the respective parties thereto, and shall deliver to
the
Trustee, the Depositor, the Master Servicer and any NIMS Insurer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form
annexed
to the Custodial Agreement as Exhibit B-2, as applicable) to the effect
that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any
Mortgage Loan prepaid in full or any Mortgage Loan specifically identified
in
such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession
and (ii)
such documents have been reviewed by it and appear to relate to such Mortgage
Loan. The Trustee, or the Custodians on behalf of the Trustee, shall determine
whether such documents are executed and endorsed, but shall be under no
duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate
for
the represented purpose or that they have actually been recorded or are
in
recordable form or that they are other than what they purport to be on
their
face. Neither the Trustee nor the Custodians shall have any responsibility
for
verifying the genuineness or the legal effectiveness of or authority for
any
signatures of or on behalf of any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a
part of
a Mortgage File that is missing, does not appear regular on its face
(i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify
the
Mortgage Loan to which such Material Defect relates in the Interim Certification
delivered to the Depositor and the Master Servicer. Within 90 days of its
receipt of such notice, the Transferor, or, if the Transferor does not
do so,
the Depositor shall be required to cure such Material Defect (and, in such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the Transferor or the
Depositor, as applicable, does not so cure such Material Defect, the Transferor,
or, if the Transferor does not do so, the Depositor, shall, if a loss has
been
incurred with respect to such Mortgage Loan that would, if such Mortgage
Loan
were not purchased from the Trust Fund, constitute a Realized Loss, and
such
loss is attributable to the failure of the Depositor to cure such Material
Defect, repurchase the related Mortgage Loan from the Trust Fund at the
Purchase
Price. A loss shall be deemed to be attributable to the failure of the
Depositor
to cure a Material Defect if, as determined by the Depositor, upon mutual
agreement with the Trustee each acting in good faith, absent such Material
Defect, such loss would not have been incurred. Within the two-year period
following the Closing Date, the Depositor may, in lieu of repurchasing
a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage
Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section
2.05.
The failure of the Trustee or the applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect
or
relieve the Depositor of its obligation to repurchase any Mortgage Loan
pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
66
(d) Within
180 days following the Closing Date, the Trustee, or the Custodians, shall
deliver to the Trustee, the Depositor, the Master Servicer and any NIMS
Insurer
a Final Certification substantially in the form attached as Exhibit B-3
(or in
the form annexed to the Custodial Agreements as Exhibit B-3, as applicable)
evidencing the completeness of the Mortgage Files in its possession or
control,
with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the
Trust
Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each
of
the parties hereto acknowledges that the Custodians shall perform the applicable
review of the Mortgage Loans and respective certifications thereof as provided
in this Section 2.02 and the Custodial Agreements. The Trustee, solely
in its
capacity as Trustee hereunder, is hereby authorized and directed by the
Depositor to appoint the Custodians and to execute and deliver the Custodial
Agreements.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement,
each
Servicing Agreement. The Depositor hereby directs the Trustee, solely in
its
capacity as Trustee hereunder, to execute and deliver, concurrently with
the
execution and delivery of this Agreement and each Servicing Agreement to
which
the Trustee is a party.
67
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders, the Master Servicer and any NIMS Insurer as of the
Closing
Date or such other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good
standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions
hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment,
decree or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement
and the
consummation of the transactions contemplated hereby do not require the
consent
or approval of, the giving of notice to, the registration with, or the
taking of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected
or taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Master Servicer
and the Credit Risk Manager, constitutes a valid and binding obligation
of the
Depositor enforceable against it in accordance with its terms except as
such
enforceability may be subject to (A) applicable bankruptcy and insolvency
laws
and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor,
before
or by any court, administrative agency, arbitrator or governmental body
(A) with
respect to any of the transactions contemplated by this Agreement or (B)
with
respect to any other matter which in the judgment of the Depositor will
be
determined adversely to the Depositor and will if determined adversely
to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan,
and the
Depositor had good and marketable title thereto, and had full right to
transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only
to (1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien
for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions
in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage
Loan,
and (3) such other matters to which like properties are commonly subject
which
do not, individually or in the aggregate, materially interfere with the
benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Mortgage Loan pursuant to this Agreement.
68
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement
is in
the form of an assignment of a prior agreement). To the extent that any
fact,
condition or event with respect to a Mortgage Loan constitutes a breach
of both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of
the
Seller under the Mortgage Loan Sale Agreement, the only right or remedy
of the
Trustee, any Certificateholder or any NIMS Insurer hereunder shall be their
rights to enforce the obligations of the applicable Transferor under any
applicable representation or warranty made by it. The Trustee acknowledges
that,
except as otherwise provided in the Mortgage Loan Sale Agreement, the Seller
shall not have any obligation or liability with respect to any breach of
a
representation or warranty made by it with respect to the Mortgage Loans
sold by
it if the fact, condition or event constituting such breach also constitutes
a
breach of a representation or warranty made by the applicable Transferor
in the
applicable Transfer Agreement, without regard to whether such Transferor
fulfills its contractual obligations in respect of such representation
or
warranty. The Trustee further acknowledges that the Depositor shall have
no
obligation or liability with respect to any breach of any representation
or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
|
Section
2.04.
|
Discovery
of Breach.
|
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03, (ii) of the Seller set forth in the
Mortgage Loan Sale Agreement and assigned to the Depositor by the Seller
under
the Mortgage Loan Sale Agreement and to the Trustee by the Depositor hereunder
and (iii) of each Transferor and of each Servicer assigned by the Seller
to the
Depositor pursuant to the Mortgage Loan Sale Agreement and assigned to
the
Trustee by the Depositor hereunder, shall each survive delivery of the
Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee
and
shall continue throughout the term of this Agreement. Upon discovery by
any of
the Depositor, the Master Servicer or the Trustee of a breach of any of
such
representations and warranties that adversely and materially affects the
value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties; provided, to the extent that
knowledge of such breach with respect to any Mortgage Loan is known by
any
officer, director, employee or agent of Aurora acting in any capacity other
than
as Master Servicer hereunder, the Master Servicer shall not be deemed to
have
knowledge of any such breach until an officer of the Master Servicer has
actual
knowledge thereof. Within 90 days of the discovery of a breach of any
representation or warranty given to the Trustee by the Depositor or given
by any
Transferor or the Seller and assigned to the Trustee, the Depositor, such
Transferor or the Seller, as applicable, shall either (a) cure such breach
in
all material respects, (b) repurchase such Mortgage Loan or any property
acquired in respect thereof from the Trustee at the Purchase Price (or
in the
case of a First Payment Default Mortgage Loan, the PPTL Purchase Price
(excluding any PPTL Premium) or the FPD Purchase Price (excluding any FPD
Premium)) or (c) within the two-year period following the Closing Date,
substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage
Loan.
Upon discovery by any of the Depositor, the Master Servicer or the Trustee
of a
breach of any representation and warranty of the Transferor assigned to
the
Trustee, the party discovering such breach shall give prompt written notice
to
the other parties and the Trustee shall enforce its rights under the Transfer
Agreement and the Mortgage Loan Sale Agreement for the benefit of
Certificateholders and any NIMS Insurer. As provided in the Mortgage Loan
Sale
Agreement, if the Transferor substitutes a mortgage loan for a Deleted
Mortgage
Loan pursuant to the Transfer Agreement and such substitute mortgage loan
is not
a Qualifying Substitute Mortgage Loan, then pursuant to the terms of the
Mortgage Loan Sale Agreement the Seller will, in exchange for such substitute
mortgage loan, (i) pay to the Trust Fund the applicable Purchase Price
for the
affected Mortgage Loan or (ii) within two years of the Closing Date,
substitute a Qualifying Substitute Mortgage Loan.
69
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement or by the Seller pursuant to the Mortgage Loan Sale Agreement
or by
the Transferor pursuant to the applicable Transfer Agreement, the principal
portion of the funds (including the FPD Purchase Price (excluding any FPD
Premium) or PPTL Purchase Price (excluding any PPTL Premium) in the case
of any
First Payment Default Mortgage Loan) received by the Trustee in respect
of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment
and the
Purchase Price, FPD Purchase Price (excluding any FPD Premium) or PPTL
Purchase
Price (excluding any PPTL Premium), as applicable, shall be deposited in
the
Certificate Account. The Trustee (i) upon receipt of the full amount of
the
Purchase Price for a Deleted Mortgage Loan, (ii) upon receipt of a written
certification from the Master Servicer that it has received the full amount
of
the Purchase Price for a Deleted Mortgage Loan and has deposited such amount
in
the Collection Account or (iii) upon receipt of notification from the applicable
Custodian that it had received the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released and reassign
to the
Depositor or the Seller, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer
or assignment, in each case without recourse, representation or warranty,
as
shall be necessary to vest in such party or its designee or assignee title
to
any Deleted Mortgage Loan released pursuant hereto, free and clear of all
security interests, liens and other encumbrances created by this Agreement,
which instruments shall be prepared by the related Servicer and the Trustee
shall have no further responsibility with respect to the Mortgage File
relating
to such Deleted Mortgage Loan. The Seller indemnifies and holds the Trust
Fund,
the Master Servicer, the Trustee, the Depositor, and NIMS Insurer and each
Certificateholder harmless against any and all taxes, claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments,
and any
other costs, fees and expenses that the Trust Fund, the Trustee, the Master
Servicer, the Depositor, any NIMS Insurer and any Certificateholder may
sustain
in connection with any actions of such Seller relating to a repurchase
of a
Mortgage Loan other than in compliance with the terms of this Section 2.05
and
the Mortgage Loan Sale Agreement, to the extent that any such action causes
an
Adverse REMIC Event.
70
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to
the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor
or
the Seller, as applicable, must deliver to the Trustee (or the applicable
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
granting language substantially comparable to that set forth in the first
paragraph of Section 2.01(a); and (ii) the Depositor will be deemed to
have
made, with respect to such Qualifying Substitute Mortgage Loan, each of
the
representations and warranties made by it with respect to the related Deleted
Mortgage Loan. As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Master Servicer, at the expense
of the
Depositor and at the direction and with the cooperation of the applicable
Servicer, shall (i) with respect to a Qualifying Substitute Mortgage Loan
that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be
recorded by the applicable Servicer if required pursuant to Section 2.01(c),
or
(ii) with respect to a Qualifying Substitute Mortgage Loan that is a MERS
Mortgage Loan, cause to be taken such actions as are necessary to cause
the
Trustee to be clearly identified as the owner of each such Mortgage Loan
on the
records of MERS if required pursuant to Section 2.01(c).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage
Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted
Mortgage
Loan shall be made unless the Trustee and any NIMS Insurer has received
an
Opinion of Counsel addressed to the Trustee (at the expense of the party
seeking
to make the substitution) that, under current law, such substitution will
not
cause an Adverse REMIC Event.
|
Section
2.06.
|
Grant
Clause.
|
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not
a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders
of the
Certificates a first priority security interest to secure repayment of
an
obligation in an amount equal to the aggregate Class Principal Amount of
the
Certificates (or the aggregate principal balance of the Lower Tier REMIC
1
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund, the Supplemental Interest Trust, the Final Maturity
Reserve Trust and all proceeds of any and all property constituting the
Trust
Fund, the Supplemental Interest Trust and the Final Maturity Reserve Trust
to
secure payment of the Certificates or Lower Tier REMIC 1 Uncertificated
Regular
Interests, as applicable (such security interest being, to the extent of
the
assets that constitute the Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement
shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while
such
agreement is the property of the Trustee, to have a security interest in
all of
the assets that constitute the Supplemental Interest Trust, but only to
the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance
is deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate
or
Lower Tier REMIC 1 Uncertificated Regular Interests, as applicable, the
security
interest created hereby shall continue in full force and effect and the
Trustee
shall be deemed to be the collateral agent for the benefit of such Person,
and
all proceeds shall be distributed as herein provided.
71
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement
were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be
a
perfected security interest of first priority under applicable law and
shall be
maintained as such throughout the term of this Agreement. The Depositor
shall,
at its own expense, make all initial filings on or about the Closing Date
and
shall forward a copy of such filing or filings to the Trustee. Without
limiting
the generality of the foregoing, the Depositor shall prepare and forward
for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation
(x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2)
any
change of location of the jurisdiction of organization of the Seller or
the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law
of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written
notice of
such action to its immediate and intermediate transferee, including the
Trustee.
Before effecting such change, the Seller or the Depositor proposing to
change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to
continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in
any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
72
ARTICLE
III
THE
CERTIFICATES
|
Section
3.01.
|
The
Certificates.
|
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial
ownership
of which will be held in the dollar denominations in Certificate Principal
Amount, or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. The Class P and Class X
Certificates shall each be maintained in definitive, fully registered form
in
the minimum denomination specified in the Preliminary Statement hereto
and in
integral multiples of 1% in excess thereof. Each of the Class R and Class
LT-R
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100%
of the
Percentage Interest of such Class. The Certificates may be issued in the
form of
typewritten certificates.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt
by the
Trustee (or the applicable Custodian) of the Mortgage Files described in
Section
2.01. No Certificate shall be entitled to any benefit under this Agreement,
or
be valid for any purpose, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein, executed
by an
authorized officer of the Trustee or the Authenticating Agent, if any,
by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated
the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates
executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
(c) The
Class
B Certificates offered and sold in reliance on the exemption from registration
under Rule 144A under the Securities Act shall be issued initially in the
form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in
Exhibit A
added to the forms of such Certificates (each, a “Restricted Global Security”),
which shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for The Depository Trust
Company (“DTC”) and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Restricted Global Securities may from time to
time be
increased or decreased by adjustments made on the records of the Trustee
or DTC
or its nominee, as the case may be, as hereinafter provided.
73
(d) The
Class
B Certificates sold in offshore transactions in reliance on Regulation
S shall
be issued initially in the form of one or more permanent global Certificates
in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A hereto added to the forms of such Certificates
(each, a “Regulation S Global Security”), which shall be deposited on behalf of
the subscribers for such Certificates represented thereby with the Trustee,
as
custodian for DTC and registered in the name of a nominee of DTC, duly
executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Regulation S Global Securities may from time to
time be
increased or decreased by adjustments made on the records of the Trustee
or DTC
or its nominee, as the case may be, as hereinafter provided.
(e) The
Class
B Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3)
or (7) under the Securities Act shall be issued initially in the form of
one or
more Definitive Certificates.
|
Section
3.02.
|
Registration.
|
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c)
Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests) and shall
maintain books for the registration and for the transfer of Certificates
(and,
after a Section 7.01(c) Purchase Event, the Lower Tier REMIC 1 Uncertificated
Regular Interests) (the “Certificate Register”). The Trustee may appoint a bank
or trust company to act as Certificate Registrar. A registration book shall
be
maintained for the Certificates (and Lower Tier REMIC 1 Uncertificated
Regular
Interests, as the case may be) collectively. The Certificate Registrar
may
resign or be discharged or removed and a new successor may be appointed
in
accordance with the procedures and requirements set forth in Sections 6.06
and
6.07 hereof with respect to the resignation, discharge or removal of the
Trustee
and the appointment of a successor Trustee. The Certificate Registrar may
appoint, by a written instrument delivered to the Holders, any NIMS Insurer
and
the Master Servicer, any bank or trust company to act as co-registrar under
such
conditions as the Certificate Registrar may prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee
of the
Master Servicer’s interest in the Lower Tier REMIC 1 Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is a
permitted LTURI-holder hereunder. The Lower Tier REMIC 1 Uncertificated
Regular
Interests may only be transferred in whole and not in part to no more than
one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Lower Tier REMIC 1
Uncertificated Regular Interests are registered on the books of the Certificate
Registrar as the LTURI-holder for all purposes hereunder.
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
(a) A
Certificate (other than a Book-Entry Certificate which shall be subject
to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by
such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee
or any
Authenticating Agent shall authenticate and deliver to the transferee,
one or
more new Certificates of the same Class and evidencing, in the aggregate,
the
same aggregate Certificate Principal Amount or Percentage Interest as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but
the
Certificate Registrar may require payment of a sum sufficient to cover
any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
74
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing
in the
aggregate the same Certificate Principal Amount or Percentage Interest
as the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by
a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence
the same
obligations, and will be entitled to the same rights and privileges, as
the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that
may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
and the
Trustee or the Authenticating Agent shall authenticate, date and deliver
the
Certificates which the Certificateholder making the exchange is entitled
to
receive.
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i)
such
Person is not a U.S. person within the meaning of Regulation S and was,
at the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under
the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale,
pledge
or other transfer of such Certificates or any interest therein shall be
made in
the United States or to or for the account or benefit of a U.S. person
(each as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person
which the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S)
in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee
of the
transfer restrictions specified in this Section.
75
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent,
an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act by a transferor that
has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, or to any Person all
of the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the
form of
Exhibit G hereto.
(d) (i)
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received
(A) a
certificate substantially in the form of Exhibit H hereto (or Exhibit D-1,
in
the case of a Residual Certificate) from such transferee or (B) an Opinion
of
Counsel satisfactory to the Trustee, to the effect that the purchase and
holding
of such a Certificate will not constitute or result in prohibited transactions
under Title I of ERISA or Section 4975 of the Code and will not subject
the
Trustee, the Master Servicer, any Servicer, any NIMS Insurer or the Depositor
to
any obligation in addition to those undertaken in the Agreement; provided,
however,
that the
Trustee will not require such certificate or opinion in the event that,
as a
result of a change of law or otherwise, counsel satisfactory to the Trustee,
has
rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or
holding
such a Certificate with the assets of a Plan will not constitute or result
in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H.
The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer,
any NIMS
Insurer or the Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers
of such
Certificates in violation of the transfer restrictions. The Trustee shall
be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder
thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of any such Plan any
payments made on such ERISA-Restricted Certificate at and after either
such
time. Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Holder of such Certificate that is
not such
a Plan or Person acting on behalf of a Plan.
76
(ii) No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to
the
termination of the Swap Agreement, the Interest Rate Cap Agreement and
the Final
Maturity Reserve Trust, unless the Trustee shall have received a representation
letter from the transferee of such Certificate, substantially in the form
set
forth in Exhibit H, to the effect that either (i) such transferee is neither
a
Plan nor a Person acting on behalf of any such Plan or using the assets
of any
such Plan to effect such transfer or (ii) the acquisition and holding of
the
ERISA-Restricted Trust Certificate are eligible for exemptive relief under
the
statutory exemption for nonfiduciary service providers under Section 408(b)(17)
of ERISA and Section 4975(d)(20) of the Code, Prohibited Transaction Class
Exemption (“PTCE”) 84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or PTCE 96-23 or
some other applicable exemption. Notwithstanding anything else to the contrary
herein, prior to the termination of the Swap Agreement, the Interest Rate
Cap
Agreement and the Final Maturity Reserve Trust, any purported transfer
of an
ERISA-Restricted Trust Certificate on behalf of a Plan without the delivery
to
the Trustee of a representation letter as described above shall be void
and of
no effect. If the ERISA-Restricted Trust Certificate is a Book-Entry
Certificate, prior to the termination of the Swap Agreement, the Interest
Rate
Cap Agreement and the Final Maturity Reserve Trust, the transferee will
be
deemed to have made a representation as provided in clause (i) or (ii)
of this
paragraph, as applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired
or held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify
to the
extent permitted by law and hold harmless the Depositor, the Trustee, any
NIMS
Insurer and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Trust Certificate that is in fact not
permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification
number
of the owner of the Certificate and the payment of a sum sufficient to
cover any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment
or to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of a Certificate.
77
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may
be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other
person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade
or
business within the United States and has furnished the transferor and
the
Trustee with an effective Internal Revenue Service W-8ECI or successor
form at
the time and in the manner required by the Code (any such person who is
not
covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee or Certificate Registrar an affidavit in substantially the
form
attached hereto as Exhibit D-1 representing and warranting, among other
things,
that such transferee is neither a Disqualified Organization, an agent or
nominee
acting on behalf of a Disqualified Organization, nor a Non-Permitted Foreign
Holder (any such transferee, a “Permitted Transferee”), and the proposed
transferor shall deliver to the Trustee an affidavit in substantially the
form
attached hereto as Exhibit D-2. In addition, the Trustee may (but shall
have no
obligation to) require, prior to and as a condition of any such transfer,
the
delivery by the proposed transferee of an Opinion of Counsel, addressed
to the
Depositor, the Master Servicer, any NIMS Insurer and the Trustee satisfactory
in
form and substance to the Depositor, that such proposed transferee or,
if the
proposed transferee is an agent or nominee, the proposed beneficial owner,
is
not a Disqualified Organization, agent or nominee thereof, or a Non-Permitted
Foreign Holder. Notwithstanding the registration in the Certificate Register
of
any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-Permitted
Foreign
Holder, such registration shall be deemed to be of no legal force or effect
whatsoever and such Disqualified Organization, agent or nominee thereof,
or
Non-Permitted Foreign Holder shall not be deemed to be a Certificateholder
for
any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate. The Trustee shall not be under
any
liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the maturity of any payments due on
such
Residual Certificate to the Holder thereof or for taking any other action
with
respect to such Holder under the provisions of the Agreement, so long as
the
transfer was effected in accordance with this Section 3.03(f), unless a
Responsible Officer of the Trustee shall have actual knowledge at the time
of
such transfer or the time of such payment or other action that the transferee
is
a Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Trustee shall be entitled, but not obligated, to recover
from any Holder of a Residual Certificate that was a Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder at the time it
became
a Holder or any subsequent time it became a Disqualified Organization,
agent or
nominee thereof, or Non-permitted Foreign Holder, all payments made on
such
Residual Certificate at and after either such times (and all costs and
expenses,
including but not limited to attorneys’ fees, incurred in connection therewith).
Any payment (not including any such costs and expenses) so recovered by
the
Trustee shall be paid and delivered to the last preceding Holder of such
Residual Certificate.
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt
of
written notice to the Trustee or Certificate Registrar that the registration
of
transfer of such Residual Certificate was not in fact permitted by this
Section
3.03(f), the last preceding Permitted Transferee shall be restored to all
rights
as Holder thereof retroactive to the date of such registration of transfer
of
such Residual Certificate. The Trustee shall be under no liability to any
Person
for any registration of transfer of a Residual Certificate that is in fact
not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action
with
respect to such Holder under the provisions of this Agreement so long as
the
transfer was registered upon receipt of the affidavit described in the
preceding
paragraph of this Section 3.03(f).
78
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class B Certificate remains outstanding and is held by or on behalf
of DTC,
transfers of a Global Security representing any such Certificates, in whole
or
in part, shall only be made in accordance with Section 3.01 and this Section
3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any Class B Certificate shall be limited to transfers of such
Global Security, in whole or in part, to nominees of DTC or to a successor
of
DTC or such successor’s nominee.
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person
who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person,
may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S
Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar,
to be
credited a beneficial interest in a Regulation S Global Security in an
amount
equal to the beneficial interest in such Restricted Global Security to
be
exchanged but not less than the minimum denomination applicable to such
holder’s
Certificates held through a Regulation S Global Security, (II) a written
order
given in accordance with DTC’s procedures containing information regarding the
participant account of DTC and, in the case of a transfer pursuant to and
in
accordance with Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the form of Exhibit
M-1
hereto given by the holder of such beneficial interest stating that the
exchange
or transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Securities, including that the holder
is
not a U.S. person, and pursuant to and in accordance with Regulation S,
the
Trustee, as Certificate Registrar, shall reduce the principal amount of
the
Restricted Global Security and increase the principal amount of the Regulation
S
Global Security by the aggregate principal amount of the beneficial interest
in
the Restricted Global Security to be exchanged, and shall instruct Euroclear
or
Clearstream, as applicable, concurrently with such reduction, to credit
or cause
to be credited to the account of the Person specified in such instructions
a
beneficial interest in the Regulation S Global Security equal to the reduction
in the principal amount of the Restricted Global Security.
79
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in a Restricted Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar,
to cause
to be credited a beneficial interest in a Restricted Global Security in
an
amount equal to the beneficial interest in such Regulation S Global Security
to
be exchanged but not less than the minimum denomination applicable to such
holder’s Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding the participant
account with DTC to be credited with such increase, and (II) a certificate
in
the form of Exhibit M-2 hereto given by the holder of such beneficial interest
and stating, among other things, that the Person transferring such interest
in
such Regulation S Global Security reasonably believes that the Person acquiring
such interest in a Restricted Global Security is a QIB, is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
under
the Securities Act and in accordance with any applicable securities laws
of any
State of the United States or any other jurisdiction, then the Trustee,
as
Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the
case
may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to
the
provisions of Section 3.03(l)(C).
80
|
Section
3.04.
|
Cancellation
of Certificates.
|
Any
Certificate surrendered for registration of transfer or exchange shall
be
cancelled and retained in accordance with the Trustee’s normal retention
policies with respect to cancelled certificates maintained by the Trustee
or the
Certificate Registrar.
|
Section
3.05.
|
Replacement
of Certificates.
|
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Authenticating
Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee
and
any Authenticating Agent that such destroyed, lost or stolen Certificate
has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in
exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount. Upon the
issuance of any new Certificate under this Section 3.05, the Trustee and
Authenticating Agent may require the payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in relation thereto
and any
other expenses (including the fees and expenses of the Trustee or the
Authenticating Agent) connected therewith. Any replacement Certificate
issued
pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found
at any
time.
|
Section
3.06.
|
Persons
Deemed Owners.
|
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar,
any NIMS
Insurer and any agent of any of them may treat the Person in whose name
any
Certificate is registered upon the books of the Certificate Registrar as
the
owner of such Certificate for the purpose of receiving distributions pursuant
to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar,
any NIMS
Insurer nor any agent of any of them shall be affected by notice to the
contrary.
|
Section
3.07.
|
Temporary
Certificates.
|
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise
produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations
as the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable
for
definitive Certificates upon surrender of the temporary Certificates at
the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class
in the
authorized denominations. Until so exchanged, the temporary Certificates
shall
in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
81
|
Section
3.08.
|
Appointment
of Paying Agent.
|
(a) The
Trustee, subject to the consent of the NIMS Insurer, may appoint a Paying
Agent
(which may be the Trustee) for the purpose of making distributions to
Certificateholders hereunder. The Trustee shall cause such Paying Agent
(if
other than the Trustee) to execute and deliver to the Trustee an instrument
in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted
by
the Trustee to any such Paying Agent for the purpose of making distributions
shall be paid to Certificateholders on each Distribution Date and any amounts
not so paid shall be returned on such Distribution Date to the Trustee.
If the
Paying Agent is not the Trustee, the Trustee shall cause to be remitted
to the
Paying Agent on or before the Business Day prior to each Distribution Date,
by
wire transfer in immediately available funds, the funds to be distributed
on
such Distribution Date. Any Paying Agent shall be either a bank or trust
company
or otherwise authorized under law to exercise corporate trust powers. The
initial Paying Agent shall be the Trustee.
(b) Any
Paying Agent (if other than the Trustee) shall comply with its reporting
obligations under Regulation AB with respect to the Trust Fund in form
and
substance similar to those of the Trustee pursuant to Section 6.20(d)(iv)
and
Section 9.25, and the related assessment of compliance and attestation
shall
cover, at a minimum, the elements of the servicing criteria applicable
to the
Paying Agent indicated in Exhibit S attached hereto. For so long as the
Depositor is subject to Exchange Act reporting requirements with respect
to the
Trust, the Paying Agent (if other than the Trustee) shall give prior written
notice to the Sponsor, the Master Servicer, the Trustee and the Depositor
of the
appointment of any Subcontractor by it and a written description (in form
and
substance reasonably satisfactory to the Sponsor and the Depositor) of
the role
and function of each Subcontractor utilized by the Paying Agent, as applicable,
specifying (A) the identity of each such Subcontractor and (B) which elements
of
the servicing criteria set forth under Item 1122(d) of Regulation AB will
be
addressed in assessments of compliance provided by each such Subcontractor.
In
addition, for so long as the Depositor is subject to Exchange Act reporting
requirements with respect to the Trust, the Paying Agent (if other than
the
Trustee) shall notify the Sponsor, the Master Servicer, the Trustee and
the
Depositor within five (5) calendar days of knowledge thereof (i) of any
legal
proceedings pending against the Paying Agent of the type described in Item
1117
(§ 229.1117) of Regulation AB, (ii) any merger, consolidation or sale of
substantially all of the assets of the Paying Agent and (iii) if the Paying
Agent shall become (but only to the extent not previously disclosed) at
any time
an affiliate of any of the parties listed on Exhibit V hereto or any of
their
affiliates. On or before March 1st
of each
year, the Depositor shall furnish any change in the information in Exhibit
V to
the Paying Agent and the Trustee.
82
(c) Any
Paying Agent (if other than the Trustee) agrees to indemnify the Depositor,
the
Trustee and the Master Servicer, and each of their respective directors,
officers, employees and agents and the Trust Fund and hold each of them
harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon the
failure
by such Paying Agent to deliver any information, report or certification
when
and as required under Section 6.20 and Section 9.25(a). This indemnification
shall survive the termination of this Agreement or the termination of such
Paying Agent hereunder.
|
Section
3.09.
|
Book-Entry
Certificates.
|
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued
in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered
on the
Certificate Register in the name of the nominee of the Clearing Agency,
and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Master Servicer, the Paying Agent, the Registrar, any NIMS
Insurer and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry Certificates)
as the
authorized representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions to
the
accounts of such Persons entitled thereto, in accordance with the Clearing
Agency’s normal procedures;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall
control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing
Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under
this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give
all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c) If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with
respect
to the Book-Entry Certificates, and (B) the Depositor is unable to locate
a
qualified successor or (ii) after the occurrence of an Event of Default,
Certificate Owners representing beneficial interests aggregating not less
than
50% of the Class Principal Amount of a Class of Book-Entry Certificates
identified as such to the Trustee by an Officer’s Certificate from the Clearing
Agency advise the Trustee and the Clearing Agency through the Clearing
Agency
Participants in writing that the continuation of a book-entry system through
the
Clearing Agency is no longer in the best interests of the Certificate Owners
of
a Class of Book-Entry Certificates, the Trustee shall notify any NIMS Insurer
and shall notify or cause the Certificate Registrar to notify the Clearing
Agency to effect notification to all Certificate Owners, through the Clearing
Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Clearing
Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. Neither
the
Depositor nor the Trustee shall be liable for any delay in delivery of
such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the
extent
applicable, with respect to such Definitive Certificates and the Trustee
shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Trustee, upon the instruction
of
the Depositor, shall have the right to issue Definitive Certificates on
the
Closing Date in connection with credit enhancement programs.
83
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
|
Section
4.01.
|
Collection
Account.
|
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the
Holders
of Structured Asset Securities Corporation Mortgage Loan Trust 2007-BC2
Mortgage
Pass Through Certificates, Series 2007-BC2.” The Collection Account shall relate
solely to the Certificates and to the Lower Tier REMIC 1 Uncertificated
Regular
Interests issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 10 days and transfer
all funds and investment property on deposit in such existing Collection
Account
into such new Collection Account.
(c) The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Collection Account to hold such account in the
name of
the Master Servicer under this Agreement. On each Master Servicer Remittance
Date, the entire amount on deposit in the Collection Account (subject to
permitted withdrawals set forth in Section 4.02), other than amounts not
included in the Total Distribution Amount for such Distribution Date shall
be
remitted to the Trustee for deposit into the Certificate Account by wire
transfer in immediately available funds. The Master Servicer, at its option,
may
choose to make daily remittances from the Collection Account to the Trustee
for
deposit into the Certificate Account.
84
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments (or in the case of Simple Interest Mortgage Loans, representing
scheduled interest payments, but actual principal payments) on the Mortgage
Loans due after the Cut-off Date and unscheduled payments received on or
after
the Cut-off Date and on or before the Closing Date. Thereafter, the Master
Servicer shall deposit or cause to be deposited in the Collection Account
on the
earlier of the applicable Master Servicer Remittance Date and two Business
Days
following receipt thereof, the following amounts received or payments made
by it
(other than in respect of principal of and interest on the Mortgage Loans
due on
or before the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal
received
after its related Due Date, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including Prepayment
Premiums, in all cases, net of the Servicing Fee, with respect to each
such
Mortgage Loan, but only to the extent of the amount permitted to be withdrawn
or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x)
any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to
the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to a Servicer with respect to such Mortgage Loan under the
applicable Servicing Agreement and retained by such Servicer;
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer, any Servicer or the Trustee pursuant
to
Section 5.04 or the applicable Servicing Agreement;
(vi) any
Seller Remittance Amounts remitted by a Servicer;
(vii) all
amounts paid by any Servicer with respect to Net Simple Interest Shortfalls
and
Prepayment Interest Shortfalls; and
85
(viii) the
Purchase Price, FPD Purchase Price or PPTL Purchase Price (including any
FPD
Premium or PPTL Premium) of any Mortgage Loan repurchased by the Depositor,
the
Seller, the Master Servicer or any other Person and any Substitution Amount
related to any Qualifying Substitute Mortgage Loan and
any
purchase price paid by any NIMS Insurer for the purchase of any Distressed
Mortgage Loan under Section 7.04.
The
Master Servicer shall also deposit from its own funds into the Collection
Account (to the extent not already received from the related Servicer),
without
right of reimbursement, except from Net Simple Interest Excess, an amount
equal
to any Net Simple Interest Shortfall (to the extent not offset by Net Simple
Interest Excess) for the related Collection Period.
(e) Funds
in
the Collection Account may be invested in Eligible Investments selected
by and
at the written direction of the Master Servicer, which shall mature not
later
than one Business Day prior to the Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Trustee, then such
Eligible
Investment shall mature not later than such applicable Master Servicer
Remittance Date) and any such Eligible Investment shall not be sold or
disposed
of prior to its maturity. All such Eligible Investments shall be made in
the
name of the Master Servicer in trust for the benefit of the Trustee and
Holders
of the Structured Asset Securities Corporation Mortgage Loan Trust 2007-BC2
Mortgage Pass-Through Certificates, Series 2007-BC2. All income and gain
realized from any Eligible Investment shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time,
subject to Section 5.05 hereof, and shall not be part of the Trust Fund.
The
amount of any losses incurred in respect of any such investments shall
be
deposited in such Collection Account by the Master Servicer out of its
own
funds, without any right of reimbursement therefor, immediately as realized.
The
foregoing requirements for deposit in the Collection Account are exclusive,
it
being understood and agreed that, without limiting the generality of the
foregoing, payments of interest on funds in the Collection Account and payments
in the nature of late payment charges, assumption fees and other incidental
fees
and charges relating to the Mortgage Loans (other than Prepayment Premiums)
need
not be deposited by the Master Servicer in the Collection Account and may
be
retained by the Master Servicer or the applicable Servicer as additional
servicing compensation. If the Master Servicer deposits in the Collection
Account any amount not required to be deposited therein, it may at any
time
withdraw such amount from such Collection Account.
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances or Servicing Advances made
by it
or by such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; such right to reimbursement pursuant to this subclause (i) is
limited
to amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage)
which
represent late recoveries (net of the applicable Servicing Fee) of payments
of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
86
(ii) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the related Servicing Agreement)
for any
previously unreimbursed Advances or Servicing Advances made by it or by
such
Servicer (A) that it determines in good faith will not be recoverable from
amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Advance or Servicing
Advance was made or from Liquidation Proceeds or Insurance Proceeds with
respect
to such Mortgage Loan and/or (B) to the extent that such unreimbursed Advances
or Servicing Advances exceed the related Liquidation Proceeds or Insurance
Proceeds, it being understood, in the case of each such reimbursement,
that such
Master Servicer's or Servicer's right thereto shall be prior to the rights
of
the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or
the
applicable Servicing Agreement in good faith in connection with the restoration
of damaged property and, to the extent that Liquidation Proceeds after
such
reimbursement exceed the unpaid principal balance of the related Mortgage
Loan,
together with accrued and unpaid interest thereon at the applicable Mortgage
Rate less the applicable Servicing Fee Rate for such Mortgage Loan to the
Due
Date next succeeding the date of its receipt of such Liquidation Proceeds,
to
pay to itself out of such excess the amount of any unpaid assumption fees,
late
payment charges or other Mortgagor charges on the related Mortgage Loan
and to
retain any excess remaining thereafter as additional servicing compensation,
it
being understood, in the case of any such reimbursement or payment, that
such
Master Servicer’s or Servicer’s right thereto shall be prior to the rights of
the Certificateholders;
(iv) to
the
extent of any previous Advances made by the Master Servicer with respect
to
Simple Interest Mortgage Loans, to pay itself an amount equal to Net Simple
Interest Excess for the related Collection Period to the extent not offset
by
Net Simple Interest Shortfalls;
(v) to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or any Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(vi) to
pay to
the Seller any Seller Remittance Amount;
(vii) to
pay to
the Depositor or the Seller, as applicable, with respect to each Mortgage
Loan
or REO Property acquired in respect thereof that has been purchased pursuant
to
this Agreement, all amounts received thereon and not distributed on the
date on
which the related repurchase was effected, and to pay to the applicable
Person
any Advances and Servicing Advances to the extent specified in the definition
of
Purchase Price (or FPD Purchase Price), any FPD Premium or PPTL Premium,
if any
(in the case of a First Payment Default Loan), or any amounts paid by LBH
for
shortfalls in the Purchase Price for repurchases of First Payment Default
Mortgage Loans pursuant to Section 1.04(f) of the Mortgage Loan Sale Agreement
relating to the Seller paying the difference if the FPD Purchase Price
is less
than the Purchase Price;
87
(viii) subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(ix) to
make
payments to the Trustee for deposit into the Certificate Account in the
amounts
and in the manner provided herein;
(x) to
make
payment to itself, the Trustee and others pursuant to any provision of
this
Agreement;
(xi) to
withdraw funds deposited in error in the Collection Account;
(xii) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xiii) to
reimburse the Trustee, and a successor master servicer (solely in its capacity
as successor master servicer), for any fee or advance occasioned by a
termination of the Master Servicer, and the assumption of such duties by
the
Trustee or a successor master servicer appointed by the Trustee pursuant
to
Section 6.14, in each case to the extent not reimbursed by the terminated
Master
Servicer, it being understood, in the case of any such reimbursement or
payment,
that the right of the Master Servicer or the Trustee or other successor
master
servicer thereto shall be prior to the rights of the Certificateholders;
and
(xiv) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer,
to
the extent provided in such Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance
Date to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to sub-clause (x) by such date, the Master Servicer shall pay
the
Trustee, interest calculated at the “prime rate” (as published in the “Money
Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Master
Servicer Remittance Date through the date such funds are remitted to and
received by the Trustee. The Master Servicer shall only be required to
pay the
Trustee interest for the actual number of days such amounts are not timely
remitted (e.g.,
one
day’s interest, if such amounts are remitted one day after the Master Servicer
Remittance Date).
In
connection with withdrawals made pursuant to subclauses (i), (iii), (iv),
(vi)
and (vii) above, the Master Servicer’s, any Servicer’s or such other Person’s
entitlement thereto is limited to collections or other recoveries on the
related
Mortgage Loan. The Master Servicer shall therefore keep and maintain a
separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal made from the Collection Account it maintains
pursuant
to such subclause (i), (iii), (iv), (vi) and (vii).
88
|
Section
4.03.
|
Reports
to Certificateholders.
|
(a) On
each
Distribution Date, the Trustee shall have prepared (based solely on information
provided by the Master Servicer and the Swap Counterparty) and shall make
available to the Paying Agent, any NIMS Insurer, the Swap Counterparty,
the
Credit Risk Manager, the Seller and each Certificateholder a report (the
“Distribution Date Statement”) setting forth the following information (on the
basis of Mortgage Loan level information obtained from the Master
Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates, to the extent applicable, allocable
to
principal on the Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates, and the Residual
Certificate;
(iv) (A) the
aggregate amount of any Advances required to be made with respect to the
related
Collection Period by or on behalf of the Servicers (or the Master Servicer),
(B) the aggregate amount of such Advances actually made, and (C) the
amount, if any, by which (A) above exceeds (B) above;
(v) by
Mortgage Pool and in the aggregate, the total number of Mortgage Loans,
the
aggregate Scheduled Principal Balance of all the Mortgage Loans as of the
close
of business on the last day of the related Collection Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
(vi) the
Class
Principal Amount of each Class of Certificates, to the extent applicable,
as of
such Distribution Date after giving effect to payments allocated to principal
reported under clause (i) above, separately identifying any reduction of
any of
the foregoing Certificate Principal Amounts due to Applied Loss
Amounts;
(vii) the
amount of any Prepayment Premiums distributed to the Class P Certificates;
(viii) by
Mortgage Pool and in the aggregate, the amount of any Realized Losses incurred
with respect to the Mortgage Loans (x) in the applicable Prepayment Period
and
(y) in the aggregate since the Cut-off Date;
(ix) the
amount of the Servicing Fees and Credit Risk Manager’s Fees paid during the
Collection Period to which such distribution relates;
89
(x) by
Mortgage Pool and in the aggregate, the number and aggregate outstanding
principal balance of Mortgage Loans, as reported to the Trustee by the
Master
Servicer, (a) remaining outstanding, (b) Delinquent 30 to 59 days on a
contractual basis, (c) Delinquent 60 to 89 days on a contractual basis,
(d)
Delinquent 90 or more days on a contractual basis, (e) as to which foreclosure
proceedings have been commenced, all as of the close of business on the
last
Business Day of the calendar month immediately preceding the month in which
such
Distribution Date occurs, (f) in bankruptcy and (g) that are REO Properties
(the
information in this item (x) to be calculated utilizing the OTS delinquency
method);
(xi) the
aggregate outstanding principal balance of any Mortgage Loans with respect
to
which the related Mortgaged Property became a REO Property as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, if any, for each
Class
of Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates;
(xv) with
respect to each Mortgage Pool, the Interest Remittance Amount and the Principal
Remittance Amount applicable to such Distribution Date;
(xvi) if
applicable, the amount of any shortfall (i.e.,
the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually distributed);
(xvii) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xviii) the
level
of LIBOR for such Distribution Date;
(xix) whether
a
Trigger Event is in effect for that Distribution Date;
(xx) the
amount of any payments made by the Cap Counterparty to the Supplemental
Interest
Trust pursuant to Section 5.07(e);
(xxi) the
amount of any Net Swap Payment to the Supplemental Interest Trust made
pursuant
to Section 5.07, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.07, any Swap Termination Payment to the Supplemental Interest
Trust
made pursuant to Sections 5.07 and any Swap Termination Payment to the
Swap
Counterparty made pursuant to Section 5.07;
90
(xxii) the
amount of any PPTL Premiums and FPD Premiums, if any, for such Distribution
Date; and
(xxiii) the
amount of any deposit in the Final Maturity Reserve Account, and, on the
earlier
of the Distribution Date in March 2037 and the termination of the Trust
Fund,
the amount distributed from the Final Maturity Reserve Account.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates,
such
Distribution Date Statement shall also include such other information as
is
required by Item 1121 (§ 229.1121) of Regulation AB to the extent that the
Trustee shall have received any such information from the Depositor, the
Sponsor, the Master Servicer, the Servicers, the Custodians, the Swap
Counterparty or any Subservicer or Subcontractor therefor, as applicable,
no
later than four Business Days prior to the Distribution Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi)
above,
the amounts shall also (except in the case of the report delivered to the
holder
of the Class X Certificates) be expressed as a dollar amount per $1,000
of
original principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii),
(ix),
(x), (xi), (xii), (xv), (xvii), (xviii), (xx) and (xxi) shall be made available
to the Trustee, NIMS Insurer, the Swap Counterparty, the Credit Risk Manager,
the Seller, the holder of the Class LT-R Certificate and the LTURI-holder
with
regard to the Lower Tier REMIC 1 Uncertificated Regular Interests in lieu
of the
Certificates.
The
Trustee shall make such report and any additional loan level information
(and,
at its option, any additional files containing the same information in
an
alternative format) available each month to any NIMS Insurer, Certificateholders
and the Rating Agencies via the Trustee’s internet website. The Trustee’s
internet website shall initially be located at “xxx.xxxxxx.xxx/xxx.”
Assistance in using the website can be obtained by emailing the Trustee
at
“xx.xxxxxxxxxxx.xxxxxxxx@xxxxxx.xxx.” Such parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class
mail by
emailing the customer service desk and indicating such. The Trustee shall
have
the right to change the way such statements are distributed in order to
make
such distribution more convenient and/or more accessible to the above parties
and the Trustee shall provide timely and adequate notification to all above
parties regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master
Servicer (in a format attached hereto as Exhibits I and J) no later than
2:00
p.m. Eastern Time four Business Days prior to the Distribution Date (or
such
other time period set forth in Section 9.23(b)), and on the information
provided
to the Trustee by the Swap Counterparty and the Cap Counterparty. In preparing
or furnishing the foregoing information to the Certificateholders and any
NIMS
Insurer, the Trustee shall be entitled to rely conclusively on the accuracy
and
completeness of the information or data (i) regarding the Mortgage Loans
(including any First Payment Default Mortgage Loan) and the related REO
Property, that has been provided to the Trustee by the Master Servicer
based
upon information received by the Master Servicer from the Servicers, (ii)
regarding the Swap Agreement, that has been provided to the Trustee by
the Swap
Counterparty and (iii) regarding the Interest Rate Cap Agreement, that
has been
provided to the Trustee by the Cap Counterparty, and the Trustee shall
not be
obligated to verify, recompute, reconcile or recalculate any such information
or
data. The Master Servicer shall be entitled to conclusively rely on the
Mortgage
Loan data provided by the Servicers and shall have no liability for any
errors
in such Mortgage Loan data. The Trustee shall be entitled to conclusively
rely
on the Mortgage Loan data provided by the Master Servicer and shall have
no
liability for any errors or omissions in such Mortgage Loan data. The
information and reports described in the first paragraph of this Section
4.03(a)
shall be provided to the Paying Agent (if other than the Trustee) by the
Trustee
no later than 12:00 p.m. Eastern Time two Business Days prior to the
Distribution Date. Concurrently with the distribution by the Master Servicer
of
the Mortgage Loan data to the Trustee, the Master Servicer shall also provide
a
copy of such Mortgage Loan data to the Credit Risk Manager no later than
2:00
p.m. Eastern Time four Business Days prior to the Distribution
Date.
91
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Master Servicer,
the
Master Servicer shall provide, or cause to be provided, (or, to the extent
that
such information or documentation is not required to be provided by a Servicer
under the applicable Servicing Agreement, shall use reasonable efforts
to obtain
such information and documentation from such Servicer, and provide) to
any NIMS
Insurer and such Certificateholder such reports and access to information
and
documentation regarding the Mortgage Loans as any NIMS Insurer or such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to an investment in the Certificates;
provided,
however,
that the
Master Servicer shall be entitled to be reimbursed by such Certificateholder
or
the NIMS Insurer for the actual expenses incurred in providing such reports
and
access.
(c) Upon
request of a Certificateholder and prior to a Section 7.01(c) Purchase
Event,
the Trustee shall have prepared and the Trustee shall make available to
any NIMS
Insurer and each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer
and the
Certificateholders pursuant to Sections 4.03(a)(i) and 4.03(a)(ii) on an
annual
basis as may be required to enable any NIMS Insurer and such Holders to
prepare
their federal income tax returns; provided,
however,
that
this Section 4.03(c) shall not be applicable where relevant reports or
summaries
are required elsewhere in this Agreement. Such information shall also include
the amount of original issue discount accrued on each Class of Certificates
and
information regarding the expenses of the Trust Fund. The Trustee shall
be
deemed to have satisfied this requirement if it forwards such information
in any
other format permitted by the Code. The Master Servicer shall provide the
Trustee with such information (to the extent available to the Master Servicer
pursuant to this Agreement and each Servicing Agreement) as is necessary
for the
Trustee to prepare such reports (and the Trustee may rely solely upon such
information).
92
(d) The
Trustee shall furnish, to the extent reasonably available, any other information
that is required by the Code and regulations thereunder to be made available
to
Certificateholders. The Master Servicer shall provide the Trustee, to the
extent
reasonably available, such information as is necessary for the Trustee
to
prepare such reports (and the Trustee may rely solely upon such
information).
(e) So
long
as not prohibited by applicable law, the Master Servicer shall provide
to the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor's request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
|
Section
4.04.
|
Certificate
Account.
|
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, U.S. Bank National
Association, as Trustee, in trust for the benefit of the Holders of Structured
Asset Securities Corporation Mortgage Loan Trust 2007-BC2 Mortgage Pass-Through
Certificates, Series 2007-BC2” until disbursed pursuant to the terms of this
Agreement. The Certificate Account shall be an Eligible Account and shall
be for
the benefit of the Certificateholders, subject to the rights of the Trustee
set
forth herein. If the existing Certificate Account ceases to be an Eligible
Account, the Trustee shall establish a new Certificate Account that is
an
Eligible Account within ten Business Days and transfer all funds and investment
property on deposit in such existing Certificate Account into such new
Certificate Account. The Certificate Account shall relate solely to the
Certificates and the Lower Tier REMIC 1 Uncertificated Regular Interests
issued
hereunder and funds in the Certificate Account shall be held separate and
apart
from and shall not be commingled with any other monies including, without
limitation, other monies of the Trustee held under this Agreement.
(b) The
Trustee shall deposit or cause to be deposited into the Certificate Account,
on
the day on which, or if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the
Master
Servicer to the Trustee, all such amounts. The Trustee shall make withdrawals
from the Certificate Account only for the following purposes:
(i) to
make
payment to itself pursuant to any provision of this Agreement or to reimburse
itself for any fees or expenses reimbursable to it pursuant to Section
6.12;
provided,
however,
that
any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs and
expenses incurred by the Trustee pursuant to Section 6.14, in connection
with
any transfer of servicing, shall not be withdrawn from the Certificate
Account
and paid to the Trustee and the Trustee’s reimbursement for such excess amounts
shall be made pursuant to Section 5.02(b)(v);
93
(ii) to
withdraw amounts deposited in the Certificate Account in error;
(iii) to
make
payments of any investment income or earnings on the Certificate Account
to (A)
U.S. Bank National Association, LaSalle Bank National Association and Xxxxx
Fargo, in their respective capacities as Custodians, in payment of their
respective Custodial Compensation, if due and (B) then any remaining amounts
of
investment income or earnings to itself;
(iv) to
make
distributions to Certificateholders pursuant to Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(c) Funds
in
the Certificate Account may be invested by the Trustee in Eligible Investments
(which may be obligations of the Trustee or its affiliates). If invested,
all
such investments must be payable on demand or mature no later than one
Business
Day prior to the next Distribution Date (unless such investments are obligations
of the Trustee, in which case such investments may mature on the related
Distribution Date), and shall not be sold or disposed of prior to their
maturity. All such Eligible Investments will be made in the name of the
Trustee
(in its capacity as such) or its nominee. All income and gain realized
from any
such investment for each Distribution Date shall be compensation (1) to
Xxxxx
Fargo, U.S. Bank National Assocation and LaSalle Bank National Association
in
their respective capacities as Custodians, in payment of their respective
Custodial Compensation, if due, and (2) to the Trustee, any income and
gain
remaining. Subject to the preceding sentence, all income and gain realized
from
any such investment for each Distribution Date shall be subject to withdrawal
by
the Trustee from time to time. The amount of any losses incurred in respect
of
any such investments shall be paid by the Trustee for deposit in the Certificate
Account out of its own funds, without any right of reimbursement therefor,
immediately as realized.
|
Section
4.05.
|
[Reserved].
|
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
|
Section
5.01.
|
Distributions
Generally.
|
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date
the
Trustee or the Paying Agent shall make allocations and/or distributions
in
accordance with the Preliminary Statement and this Article V and based
solely on
the reports for such Distribution Date provided to it by the Master Servicer
pursuant to Section 4.03(a). Such distributions shall be made by wire transfer
in immediately available funds to an account specified in writing to the
Trustee
at least five (5) Business Days prior to the first Distribution Date to
such
Certificateholder and at the expense of such Certificateholder.
(b) The
final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office; provided,
however,
that
the foregoing provisions shall not apply to any Class of Certificates as
long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of
the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts
due with
respect to the Residual Certificates and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the Corporate Trust Office. If any payment
required to be made on the Certificates or Lower Tier REMIC 1 Uncertificated
Regular Interests is to be made on a day that is not a Business Day, then
such
payment will be made on the next succeeding Business Day.
94
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
(d) The
Trustee or the Paying Agent, as applicable, shall make payments to
Certificateholders and to the Swap Counterparty and any other person pursuant
to
this Article V and make deposits to the the Final Maturity Reserve Trust
and the
Supplemental Interest Trust and accounts held by it hereunder based solely
on
the information set forth in the monthly report furnished by the Master
Servicer
in accordance with Section 4.03(a), and shall be entitled to conclusively
rely
on such information and reports, and on the calculations contained therein,
when
making distributions to Certificateholders, the Swap Counterparty and any
other
party hereunder. The Trustee shall have no liability for any errors in
such
reports or information, and shall not be required to verify, recompute,
reconcile or recalculate any such information or data.
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a
Trust
Fund Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount (to the extent such amount is on deposit in the Certificate Account),
and
amounts that are available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of each REMIC created
pursuant to this Agreement and shall distribute such amount as specified
in
subparagraphs (b) through (i) of this Section 5.02; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date. On each Distribution Date after a Section
7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Trustee
(or the Paying Agent acting on behalf of the Trustee) shall withdraw from
the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available
for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of REMIC 1 created pursuant to this Agreement
and
shall distribute such amount as specified in subparagraphs (k) through
(m) of
this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date.
95
(b) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount for Pool 1 and for such date in the following order of
priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on
the
related Swap Payment Date and (B) the Pool Percentage for Pool 1 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 1 for
such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to the
Swap Counterparty on the related Swap Payment Date (after giving effect
to
distributions made pursuant to clause 5.02(b)(i) above and subsection 5.02(c)(i)
below for such Distribution Date), to be paid concurrently and in proportion
to
the Interest Remittance Amount available with respect to Pool 2 for such
Distribution Date;
(iii) on
the
Distribution Date in March 2017 and each Distribution Date
thereafter:
(A) for
deposit into the Final Maturity Reserve Account, the Final Maturity Reserve
Amount for Pool 1; and
(B) for
deposit into the Final Maturity Reserve Account, the Final Maturity Reserve
Amount for Pool 2 to the extent not paid from subsection 5.02(c)(iii) below
for
such Distribution Date;
(iv) to
the
Class A1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date; and
(v) for
application pursuant to Section 5.02(d) below, any Interest Remittance
Amount
for Pool 1 remaining undistributed after application pursuant to clause
(i)
through (iv) of this Section 5.02(b) for such Distribution Date.
(c) On
each
Distribution Date (or with respect to clauses (i) and (ii) below, on the
related
Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount
for Pool 2 for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on
the
related Swap Payment Date and (B) the Pool Percentage for Pool 2 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 2 for
such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to the
Swap Counterparty on the related Swap Payment Date (after giving effect
to
distributions made pursuant to subsections 5.02(b)(i) and 5.02(c)(i) above
for
such Distribution Date) to be paid concurrently and in proportion to the
Interest Remittance Amount available with respect to Pool 1 for such
Distribution Date;
96
(iii) on
the
Distribution Date in March 2017 and each Distribution Date
thereafter:
(A) for
deposit into the Final Maturity Reserve Account, the Final Maturity Reserve
Amount for Pool 2; and
(B) for
deposit into the Final Maturity Reserve Account, the Final Maturity Reserve
Amount for Pool 1 to the extent not paid from subsection 5.02(b)(iii) above
for
such Distribution Date;
(iv) concurrently,
to each Class of the Group 2 Senior Certificates, Current Interest and
any
Carryforward Interest for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would otherwise be distributable
thereon; and
(v) for
application pursuant to Section 5.02(d) below, any Interest Remittance
Amount
for Pool 2 remaining undistributed after application pursuant to clauses
(i)
through (iv) of this Section 5.02(c) for such Distribution Date.
(d) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Interest Remittance Amounts from subsections 5.02(b)(v) and 5.02(c)(v)
above in
the following order of priority:
(i) concurrently, on
a
pro
rata basis,
to
each Class of Senior Certificates, Current Interest and any Carryforward
Interest (taking into account distributions pursuant to subsections 5.02(b)(iv)
and 5.02(c)(iv) above) for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(ii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and
such
Distribution Date;
(iii) to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
(iv) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; and
(v) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section, any Interest Remittance Amount
remaining undistributed for such Distribution Date.
97
(e) On
each
Distribution Date or related Swap Payment Date, as applicable, the Trustee
shall
distribute the Principal Distribution Amount with respect to each Mortgage
Pool
for such date as follows:
(i) On
each
Distribution Date (or, with respect to clauses (A)(1), (A)(2), (B)(1) and
(B)(2)
below of this Section 5.02(e), on the related Swap Payment Date) (a) prior
to
the Stepdown Date or (b) with respect to which a Trigger Event is in effect,
until the aggregate Certificate Principal Amount of the LIBOR Certificates
equals the Target Amount for such Distribution Date, the Trustee shall
make the
following distributions, concurrently:
(A) For
Pool 1:
The
Principal Distribution Amount for Pool 1 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on
the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 1 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 1 for such Distribution Date;
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to the
Swap Counterparty on the related Swap Payment Date (after giving effect
to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) below, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date), to be paid concurrently
and in proportion to the related Principal Distribution Amount available
with
respect to Pool 2 for such Distribution Date;
(3) to
the
Class A1 Certificates until the Class Principal Amount of such Class has
been
reduced to zero; and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 1 remaining undistributed for such Distribution
Date.
(B) For
Pool 2:
The
Principal Distribution Amount for Pool 2 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on
the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 2 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 2 for such Distribution Date;
98
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to the
Swap Counterparty on the related Swap Payment Date (after giving effect
to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) and 5.02(e)(i)(B)(1)
above, and to the extent not paid previously or from the Interest Remittance
Amount for such Distribution Date) to be paid concurrently and in proportion
to
the related Principal Distribution Amount available with respect to Pool
1 for
such Distribution Date;
(3) sequentially,
to the Class A2, Class A3, Class A4 and Class A5 Certificates, in that
order,
until the Class Principal Amount of each such Class has been reduced to
zero;
and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 2 remaining undistributed for such Distribution
Date.
(ii) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Principal Distribution Amounts from subsections 5.02(e)(i)(A)(4) and
5.02(e)(i)(B)(4) above, in the following order of priority:
(A) concurrently,
on a pro
rata
basis,
in proportion to the Class Principal Amount of the Group 1 Senior Certificates
and the aggregate Class Principal Amount of the Group 2 Senior Certificates
related to each such Group, after giving effect to principal distributions
on
such Distribution Date pursuant to subsections 5.02(e)(i)(A)(3) and
5.02(e)(i)(B)(3) above, to the Group 1 Senior Certificates and the Group
2
Senior Certificates, in each case in accordance with the Related Senior
Priority, until the Class Principal Amount of each such Class has been
reduced
to zero;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to
zero;
and
(C) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of
this
Section, any Principal Distribution Amount remaining after application
pursuant
to clauses (A) and (B) of this Section 5.02(e)(ii).
(iii) Any
Principal Distribution Amount remaining on any Distribution Date after
the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
99
(iv) On
each
Distribution Date (or, with respect to clauses (A) and (B) below, on the
related
Swap Payment Date) (a) on or after the Stepdown Date and (b) with respect
to
which a Trigger Event is not in effect, the Principal Distribution Amount
for
each Mortgage Pool for such date will be distributed in the following order
of
priority:
(A) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (1) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on
the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (2) the Pool
Percentage for the related Mortgage Pool for such Distribution Date and
(y) the
Principal Remittance Amount for such Mortgage Pool for such Distribution
Date;
(B) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to the
Swap Counterparty on the related Swap Payment Date (after giving effect
to
distributions made pursuant to subsection 5.02(e)(iv)(A) above, and to
the
extent not paid previously or from the Interest Remittance Amounts for
such
Distribution Date), to be paid concurrently and in proportion to the related
Principal Distribution Amounts available with respect to each Mortgage
Pool for
such Distribution Date);
(C) so
long
as any of the Subordinate Certificates are outstanding, to the Group 1
Senior
Certificates (from amounts generated by Pool 1, except as provided below)
and to
the Group 2 Senior Certificates in accordance with the Related Senior Priority
(from amounts generated by Pool 2, except as provided below) in each case,
an
amount equal to the lesser of (x) the excess of (a) the Principal Distribution
Amount for the related Mortgage Pool for such Distribution Date over (b)
the
amount paid to the Supplemental Interest Trust for deposit into the Swap
Account
on the related Swap Payment Date pursuant to clauses (A) and (B) above
and (y)
the Related Senior Principal Distribution Amount for such Mortgage Pool
for such
Distribution Date, in each case, until the Class Principal Amount of each
such
Class has been reduced to zero; provided,
however,
to the
extent that the Principal Distribution Amount for a Mortgage Pool exceeds
the
Related Senior Principal Distribution Amount for such Mortgage Pool, such
excess
shall be applied to the Senior Certificates related to the other Mortgage
Pool
(in accordance with the Related Senior Priority), but in an amount not
to exceed
the Senior Principal Distribution Amount for such Distribution Date (as
reduced
by any distributions pursuant to subclauses (x) or (y) of this clause (1)
on
such Distribution Date); or (2) if none of the Subordinate Certificates
are
outstanding, to the Group 1 Senior Certificates and the Group 2 Senior
Certificates (in each case in accordance with the Related Senior Priority),
the
excess of (A) the Principal Distribution Amount for the related Mortgage
Pool
for such Distribution Date over (B) the amount paid to the Supplemental
Interest
Trust for deposit into the Swap Account for the related Mortgage Pool on
the
related Swap Payment Date pursuant to clauses (A) and (B) above, in each
case
until the Class Principal Amount of each such Class has been reduced to
zero;
100
(D) to
the
Class M1, Class M2 and Class M3 Certificates, sequentially and in that
order, an
amount equal to the lesser of (x) the excess of (a) the aggregate of the
Principal Distribution Amounts for Pool 1 and Pool 2 for such Distribution
Date
over (b) the amount paid to the Supplemental Interest Trust for deposit
into the
Swap Account or distributed to the Senior Certificates on such date pursuant
to
clauses (A) through (C) above, and (y) the M3 Principal Distribution Amount
for
such date, until the Class Principal Amount of each such Class has been
reduced
to zero;
(E) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2 and Class M3 Certificates on such
date
pursuant to clauses (A) through (D) above, and (y) the M4 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has
been
reduced to zero;
(F) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a) the aggregate of the Principal Distribution Amounts for Pool 1 and
Pool 2
for such Distribution Date over (b) the amount paid to the Supplemental
Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3 and Class M4 Certificates
on
such date pursuant to clauses (A) through (E) above, and (y) the M5 Principal
Distribution Amount for such date, until the Class Principal Amount of
such
Class has been reduced to zero;
(G) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4 and Class M5
Certificates on such date pursuant to clauses (A) through (F) above, and
(y) the
M6 Principal Distribution Amount for such date, until the Class Principal
Amount
of such Class has been reduced to zero;
(H) to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5 and
Class
M6 Certificates on such date pursuant to clauses (A) through (G) above,
and (y)
the M7 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
101
(I) to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6
and Class M7 Certificates on such date pursuant to clauses (A) through
(H)
above, and (y) the M8 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
(J) to
the
Class M9 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7 and Class M8 Certificates on such date pursuant to clauses (A)
through
(I) above, and (y) the M9 Principal Distribution Amount for such date,
until the
Class Principal Amount of such Class has been reduced to zero;
(K) to
the
Class B1 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8 and Class M9 Certificates on such date pursuant to clauses
(A) through (J) above, and (y) the B1 Principal Distribution Amount for
such
date, until the Class Principal Amount of such Class has been reduced to
zero;
(L) to
the
Class B2 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8, Class M9 and Class B1 Certificates on such date pursuant
to
clauses (A) through (K) above, and (y) the B2 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero; and
(M) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(f), any Principal Distribution Amount remaining
after
application pursuant to clauses (A) through (L) above.
(v) Any
Principal Distribution Amount remaining on any Distribution Date after
the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
(f) On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority:
102
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date but for which a Trigger Event is in effect, then until
the
aggregate Certificate Principal Amount of the LIBOR Certificates equals
the
Target Amount for such Distribution Date, in the following order of
priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each Group, after giving effect to previous principal distributions
on such Distribution Date pursuant to subsection 5.02(e)(ii)(A) above,
to the
Group 1 Senior Certificates and the Group 2 Senior Certificates, in each
case in
accordance with the Related Senior Priority, in reduction of their respective
Class Principal Amounts, until the Class Principal Amount of each such
Class has
been reduced to zero; and
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
in reduction of their respective Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero.
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which
a
Trigger Event is not in effect, in the following order of priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each such Group, after giving effect to previous principal
distributions on such Distribution Date pursuant to subsection 5.02(e)(iv)(C)
above, to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in each case in accordance with the Related Senior Priority, in reduction
of
their respective Class Principal Amounts, until the aggregate Class Principal
Amount of each such Class, after giving effect to distributions on such
Distribution Date, equals the Senior Target Amount;
(B) to
the
Class M1, Class M2 and Class M3 Certificates, sequentially and in that
order, in
reduction of their respective Class Principal Amounts, until the aggregate
of
the Class Principal Amounts of such Classes and the Senior Certificates,
after
giving effect to distributions on such Distribution Date, equals the M3
Target
Amount;
(C) to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2 and Class M3 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M4 Target Amount;
(D) to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3 and Class M4 Certificates, after giving
effect to distributions on such Distribution Date, equals the M5 Target
Amount;
103
(E) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4 and Class M5 Certificates,
after
giving effect to distributions on such Distribution Date, equals the M6
Target
Amount;
(F) to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5 and
Class
M6 Certificates, after giving effect to distributions on such Distribution
Date,
equals the M7 Target Amount;
(G) to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and
Class M7
Certificates, after giving effect to distributions on such Distribution
Date,
equals the M8 Target Amount;
(H) to
the
Class M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7 and
Class M8 Certificates, after giving effect to distributions on such Distribution
Date, equals the M9 Target Amount;
(I) to
the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8 and Class M9 Certificates, after giving effect to
distributions on such Distribution Date, equals the B1 Target Amount;
and
(J) to
the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8, Class M9 and Class B1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the B2 Target
Amount;
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv) to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for
such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
104
(A) concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid Basis
Risk
Shortfalls, to each Class of Senior Certificates, any applicable Basis
Risk
Shortfall and Unpaid Basis Risk Shortfall for each such Class and such
Distribution Date;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall for
each
such Class and such Distribution Date; and
(C) to
the
Swap Account, for application pursuant to Section 5.02(f)(vi), any amounts
remaining in the Basis Risk Reserve Fund, after taking into account
distributions pursuant to clauses (A) and (B) above, in excess of the
Required Reserve Fund Deposit for such Distribution Date;
(v) on
the
Distribution Date occurring in February 2012 (or the next succeeding
Distribution Date on which sufficient funds are available in the Certificate
Account to make such distributions to the Class P Certificates), $100 to
the
Class P Certificates in payment of its Class P Principal Amount;
(vi) to
the
Swap Account, the Class X Distributable Amount (less any Basis Risk Payment
for
such Distribution Date) for such Distribution Date, for application pursuant to
Section 5.02(g)(x) and Section 5.02(g)(xi) below; and
(vii) to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above to the extent attributable to
REMIC
1, and otherwise to the Class R Certificates.
(g) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x)
below, on
the related Swap Payment Date), the Trustee shall distribute the Swap Amount
for
such date as follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Counterparty, any Swap Termination Payment (not due to a Swap Counterparty
Trigger Event) owed to the Swap Counterparty pursuant to the Swap Agreement
for
such Swap Payment Date;
(iii) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such
Classes
in proportion to the amount of Current Interest and Carryforward Interest
that
would have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date to the extent unpaid;
105
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(f)(i) and (ii)
above
for such Distribution Date, for application pursuant to the priorities
set forth
in such Sections, after giving effect to distributions pursuant to such
Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(v)
and all
amounts distributed pursuant to Section 5.02(g)(vi) and Sections 5.02(h)(iii)
and 5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(g)(v) and Section 5.02(g)(vi), together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
(vi) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
any
Deferred Amount for each such Class and such Distribution Date, to the
extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(vi)
and all
amounts distributed pursuant to Section 5.02(g)(v) and Sections 5.02(h)(iii)
and
5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(g)(vi) and Section 5.02(g)(v) , together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
(vii) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant
to the
priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(viii) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth Section 5.02(f)(iv)(B), to the extent
unpaid;
(ix) to
the
Swap Termination Receipts Account for the purchase of a replacement swap
agreement pursuant to Section 5.09 (if necessary);
(x) to
the
Swap Counterparty, any unpaid Swap Termination Payment due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the
Swap
Agreement;
(xi) to
the
Class X Certificates, any remaining amount deposited into the Swap Account
pursuant to Section 5.02(f)(iv)(C) or Section 5.02(f)(vi) and any remaining
Swap
Amount; and
(xii) on
the
first Distribution Date on which the Class Principal Amount of each Class
of
Certificates has been reduced to zero, to the Class X Certificates, all
amounts
remaining in the Swap Account.
(h) On
each
Distribution Date, the Trustee shall distribute the Interest Rate Cap Amount
for
such date after making all distributions under Section 5.02(g) above as
follows:
106
(i) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class for such Distribution Date, to the extent unpaid pursuant
to
Section 5.02(g)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount
of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
Current
Interest and any Carryforward Interest for such Class and such Distribution
Date
to the extent unpaid;
(iii) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Sections 5.02(f)(i) and (ii)
above for
such Distribution Date, for application pursuant to the priorities set
forth in
such Sections; provided, however, that the sum of all such amounts distributed
pursuant to this Section 5.02(h)(iii) and all amounts distributed pursuant
to
Section 5.02(h)(iv) and Sections 5.02(g)(v) and (vi) shall not exceed the
aggregate amount of cumulative Realized Losses incurred from the Cut-off
Date
through the last day of the related Collection Period less any amounts
previously distributed pursuant to this Section 5.02(h)(iii) and Section
5.02(h)(iv), together with any amounts previously distributed pursuant
to
Sections 5.02(g)(v) and (vi);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
any
Deferred Amount for each such Class and such Distribution Date to the extent
unpaid; provided, however, that the sum of all such amounts distributed
pursuant
to this Section 5.02(h)(iv) and all amounts distributed pursuant to Section
5.02(h)(iii) and Sections 5.02(g)(v) and (vi) shall not exceed the aggregate
amount of cumulative Realized Losses incurred from the Cut-off Date through
the
last day of the related Collection Period less any amounts previously
distributed pursuant to this Section 5.02(h)(iv) and Section 5.02(h)(iii),
together with any amounts previously distributed pursuant to Sections 5.02(g)(v)
and (vi);
(v) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class and for such Distribution Date, for application pursuant
to
the priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(vi) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth in Section 5.02(f)(iv)(B), to the
extent
unpaid;
(vii) to
the
Cap Termination Receipts Account for the purchase of a replacement cap
agreement
pursuant to Section 5.09(b) (if necessary); and
(viii) to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(i) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected during the preceding Prepayment Period shall be distributed to
the
Class P Certificates.
107
(j) On
the
earlier of the Distribution Date in March 2037 and the termination of the
Trust
Fund, the Trustee shall distribute the funds on deposit in the Final Maturity
Reserve Account in the following order of priority:
(i) to
the
Senior Certificates, concurrently, in proportion to their respective Class
Principal Amounts, after giving effect to principal distributions on such
Distribution Date, in reduction of their respective Class Principal Amounts,
until the Class Principal Amount of each such Class has been reduced to
zero;
provided,
that
all
amounts distributable to the Group 1 Senior Certificates and the Group
2 Senior
Certificates shall first be made from amounts on deposit in the Final Maturity
Reserve Account in respect of the Pool 1 Mortgage Loans and the Pool 2
Mortgage
Loans, respectively, and then from the unrelated Mortgage Pool to the extent
not
paid;
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
after
giving effect to principal distributions on such Distribution Date, in
reduction
of their respective Class Principal Amounts, until the Class Principal
Amount of
each such Class has been reduced to zero;
(iii) to
the
LIBOR Certificates, any Current Interest and Carryforward Interest for
each such
Class, to the extent unpaid, in accordance with the priorities set forth
in
Sections 5.02(d)(i) and (d)(ii);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
any
Deferred Amounts for each such Class, to the extent unpaid;
(v) to
the
LIBOR Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class, to the extent unpaid, in accordance with the priorities
set
forth in Sections 5.02(f)(iv)(A) and (f)(iv)(B); and
(vi) to
the
Class X Certificates, any remaining amount.
(k) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event, but
on or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the
Total
Distribution Amount (to the extent such amount is on deposit in the Certificate
Account) and amounts available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of the Lower Tier
REMIC
1 Uncertificated Regular Interests created pursuant to this Agreement and
shall
distribute such amount first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment
or Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC 1 Uncertificated Regular Interests as provided in
the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(l) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but
on or
prior to a Trust Fund Termination Event, the Trustee shall distribute the
Swap
Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to
the
purchase of a replacement swap agreement pursuant to Section 5.09; and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
108
(m) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but
on or
prior to a Trust Fund Termination Event, the Trustee shall distribute any
amounts received from the Cap Counterparty under the Interest Rate Cap
Agreement
for such Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder.
(n) On
each
Distribution Date, an amount equal to the aggregate PPTL Premiums and FPD
Premiums collected during the preceding Prepayment Period shall be distributed
to the Class X Certificates.
|
Section
5.03.
|
Allocation
of Losses.
|
On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date,
in the
following order of priority:
(i) to
the
Class B2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ii) to
the
Class B1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iii) to
the
Class M9 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iv) to
the
Class M8 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(v) to
the
Class M7 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vi) to
the
Class M6 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vii) to
the
Class M5 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(viii) to
the
Class M4 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
109
(ix) to
the
Class M3 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(x) to
the
Class M2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero; and
(xi) to
the
Class M1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
|
Section
5.04.
|
Advances
by Master Servicer, Servicers and Trustee.
|
(a) Subject
to Section 9.07, Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, any
Servicer
determines that any Scheduled Payments (or in the case of Simple Interest
Mortgage Loans, the amount of any scheduled interest payments) due during
the
related Collection Period (other than Balloon Payments) have not been received,
such Servicer shall advance such amount to the extent provided in the applicable
Servicing Agreement. If any Servicer fails to remit Advances required to
be made
under the applicable Servicing Agreement, the Master Servicer shall itself
make,
or shall cause the successor servicer to make, such Advance on the Master
Servicer Remittance Date immediately following such Determination Date.
If the
Master Servicer determines that an Advance is required, it shall on the
Master
Servicer Remittance Date immediately following such Determination Date
either
(i) remit to the Trustee from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Certificate Account immediately available
funds in
an amount equal to such Advance, (ii) cause to be made an appropriate entry
in
the records of the Collection Account that funds in such account being
held for
future distribution or withdrawal have been, as permitted by this Section
5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account or
(iii)
make Advances in the form of any combination of clauses (i) and (ii) aggregating
the amount of such Advance. Any funds being held in the Collection Account
for
future distribution to Certificateholders and so used shall be replaced
by the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Master Servicer Remittance
Date
to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required
to be
made on the related Distribution Date. The Trustee shall be entitled to
rely
conclusively upon any determination by the Master Servicer that an Advance,
if
made, would constitute a non-recoverable advance. The Master Servicer and
each
Servicer shall be entitled to be reimbursed from the Collection Account
for all
Advances made by it as provided in Section 4.02. Notwithstanding anything
to the
contrary herein, in the event the Master Servicer determines in its reasonable
judgment that an Advance is non-recoverable, the Master Servicer shall
be under
no obligation to make such Advance.
(b) In
the
event that the Master Servicer or any Servicer fails for any reason to
make an
Advance required to be made pursuant to this Section 5.04 on or before
the
Master Servicer Remittance Date, the Trustee, solely in its capacity as
successor master servicer pursuant to Section 6.14, shall, on or before
the
related Distribution Date, deposit in the Certificate Account an amount
equal to
the excess of (a) Advances required to be made by the Master Servicer or
the
Servicers that would have been deposited in such Certificate Account over
(b)
the amount of any Advance made by the Master Servicer or any Servicer with
respect to such Distribution Date; provided,
however,
that the
Trustee shall be required to make such Advance only if it is not prohibited
by
law from doing so and it has determined that such Advance would be recoverable
from amounts to be received with respect to such Mortgage Loan, including
late
payments, Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee
shall be entitled to be reimbursed from the Collection Account and/or the
Certificate Account for Advances made by it pursuant to this Section 5.04
as if
it were the Master Servicer.
110
|
Section
5.05.
|
Compensating
Interest Payments.
|
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments
made by
the Servicers shall be a component of the Interest Remittance
Amount.
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in
trust for
the benefit of the Certificateholders, a Basis Risk Reserve Fund, into
which
Xxxxxx Brothers Holdings Inc. (“LBH”) shall initially deposit $1,000. The Basis
Risk Reserve Fund shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with,
any
other monies, including, without limitation, other monies of the Trustee
held
pursuant to this Agreement.
(b) The
Trustee (or Paying Agent) shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(f)(iv) hereof in accordance
with the Distribution Date reports. Notwithstanding the foregoing, the
initial
deposit of $1,000 made pursuant to subsection (a) above may be applied
by the
Trustee (or Paying Agent) to make such distributions.
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments.
Any
earnings on such amounts shall be distributed on each Distribution Date
to the
Holders of the Class X Certificates. The Class X Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes
and LBH
on behalf of the Holder thereof shall direct the Trustee, in writing, as
to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from
LBH as
to investment of funds on deposit in the Basis Risk Reserve Fund, such
funds
shall be invested in the U.S. Bank First American Prime Obligation Fund,
Class
A. The Basis Risk Reserve Fund shall be terminated after the earlier of
(A) a
Section 7.01(c) Purchase Event or (B) a Trust Fund Termination Event and
any
funds remaining in such fund upon such termination shall be released to
Holders
of the Class X Certificates.
|
Section
5.07.
|
Supplemental
Interest Trust.
|
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit
of the
Certificateholders. The Trustee, as trustee of the Supplemental Interest
Trust,
shall establish an account (the “Swap Account”), into which LBH shall initially
deposit $1,000. The Swap Account shall be an Eligible Account, and funds
on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other monies, including, without limitation, other
monies
of the Trustee held pursuant to this Agreement.
111
(b) In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Interest Rate Cap Account”), into which LBH shall
initially deposit $1,000. The Interest Rate Cap Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart
from, and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Trustee held pursuant to this Agreement.
(c) In
addition, on the Closing Date, the Trustee, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Collateral
Account”)
into
which funds shall be deposited pursuant to Section 5.07(h). The Collateral
Account shall be an Eligible Account, and funds on deposit therein shall
be held
separate and apart from, and shall not be commingled with, any other monies,
including, without limitation, other monies of the Trustee held pursuant
to this
Agreement.
(d) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (c), (e) and (k), any Swap Termination Payment
required pursuant to Sections 5.02(b), (c), (e) and (k), any amounts received
from the Swap Counterparty under the Swap Agreement and any amounts distributed
from the Basis Risk Reserve Fund required pursuant to Sections 5.02(f)(iv)(C)
and (f)(vi), and shall distribute from the Swap Account any Net Swap Payment
required pursuant to Section 5.02(g)(i) or Section 5.02(l), as applicable,
or
Swap Termination Payment required pursuant to Section 5.02(g)(ii), Section
5.02(g)(x) or Section 5.02(l), as applicable. Notwithstanding
the foregoing, the initial deposit of $1,000 made pursuant to subsection
(a)
above may be applied by the Trustee to make such distributions of any Net
Swap
Payment or any Swap Termination Payment.
(e) The
Trustee shall deposit into the Interest Rate Cap Account any amounts received
from the Cap Counterparty under the Interest Rate Cap Agreement.
(f) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings
on such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(g) or Section 5.02(l), as applicable. The Class X Certificates shall
evidence ownership of the Swap Account for federal income tax purposes
and the
Holder thereof shall direct the Trustee, in writing, as to investment of
amounts
on deposit therein. LBH shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the U.S. Bank First American Government
Obligations Fund, Class A or comparable investment vehicle. Any amounts
on
deposit in the Swap Account in excess of the Swap Amount on any Distribution
Date shall be held for distribution pursuant to Section 5.02(g) or Section
5.02(l), as applicable, on the following Distribution Date.
(g) Funds
in
the Interest Rate Cap Account shall be invested in Eligible Investments.
Any
earnings on such amounts shall be distributed on each Distribution Date
pursuant
to Section 5.02(h) or Section 5.02(g), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder thereof shall direct the Trustee, in writing, as
to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from
the
Class X Certificateholders as to investment of funds on deposit in the
Interest
Rate Cap Account, such funds shall be invested in the U.S. Bank First American
Government Obligations Fund, Class A or comparable investment vehicle.
Any
amounts on deposit in the Interest Rate Cap Account in excess of the Interest
Rate Cap Amount on any Distribution Date shall be held for distribution
pursuant
to Section 5.02(h) or Section 5.02(m), as applicable, on the following
Distribution Date.
112
(h) Funds
or
collateral required to be held pursuant to the Credit Support Annex shall
be
deposited into the Collateral Account. Funds posted by the Cap Counterparty
(or
its credit support provider) and/or the Swap Counterparty (or its credit
support
provider) in the Collateral Account shall be invested in Eligible Investments
at
the written direction of the Swap Counterparty. Any interest earnings on
such
amounts shall be remitted to the Cap Counterparty and/or the Swap Counterparty,
as applicable, pursuant to the terms of the Credit Support Annex. For federal
income tax purposes, the Swap Counterparty shall be considered owner of
funds
deposited in the Collateral Account. The Trustee shall not be liable for
any
losses incurred on such investments. In the absence of written instructions
from
the Cap Counterparty (or its credit support provider) and/or the Swap
Counterparty (or its credit support provider) as to investment of funds
on
deposit in the Collateral Account, such funds shall be invested in the
U.S. Bank
First American Government Obligations Fund, Class A or comparable investment
vehicle. On the first Distribution Date immediately following any Swap
Payment
Date as to which a shortfall exists with respect to a Net Swap Payment
or a Swap
Termination Payment owed by the Swap Counterparty as a result of its failure
to
make payments pursuant to the Swap Agreement, amounts necessary to cover
such
shortfall shall be removed from the Collateral Account, remitted to the
Swap
Account and distributed as all or a portion of such Net Swap Payment or
Swap
Termination Payment pursuant to Section 5.02(g) or Section 5.02(l), as
applicable. On any Distribution Date as to which a shortfall exists with
respect
to Interest Rate Cap Amounts owed by the Cap Counterparty as a result of
its
failure to make payments pursuant to the Interest Rate Cap Agreement, amounts
necessary to cover such shortfall shall be removed from the Collateral
Account,
remitted to the Interest Rate Cap Account and distributed as all or a portion
of
such Interest Rate Cap Amount pursuant to Section 5.02(h) or Section 5.02(m),
as
applicable. Any amounts on deposit in the Collateral Account required to
be
returned to the Cap Counterparty (or its credit support provider) and/or
the
Swap Counterparty (or its credit support provider), as applicable, as a
result
of (i) the termination of the Swap Agreement or the Interest Rate Cap Agreement,
as applicable, (ii) the procurement of a guarantor, (iii) the reinstatement
of
required ratings or (iv) otherwise pursuant to the Swap Agreement, shall
be
released directly to the Swap Counterparty and/or the Cap Counterparty,
as
applicable, pursuant to the terms of the Credit Support Annex.
(i) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Sections 5.02(g)
or
5.02(l), as applicable.
(j) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate
Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(h) or Section 5.02(m), as applicable.
113
(k) Upon
termination of the Trust Fund, any amounts remaining in the Collateral
Account
shall be distributed as required pursuant to the terms of the Credit Support
Annex.
(l) It
is the
intention of the parties hereto that, for federal and state income and
state and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and
until
the date when either (a) there is more than one Class X Certificateholder
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust
for
federal income tax purposes. The Trustee shall not be responsible for any
entity
level tax reporting for the Supplemental Interest Trust.
(m) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
or the Interest Rate Cap Agreement shall be deemed to be an obligation
of the
Supplemental Interest Trust.
(n) In
the
event that either the Swap Counterparty or the Cap Counterparty fails to
perform
any of its obligations under the Swap Agreement or the Interest Rate Cap
Agreement (including, without limitation, its obligations to make any payment
or
transfer collateral), or breaches any of its representations and warranties
under the Swap Agreement or the Interest Rate Cap Agreement, as applicable,
or
in the event that an Event of Default, Termination Event, or Additional
Termination Event occurs (as such terms are defined in the Swap Agreement
or the
Interest Rate Cap Agreement, as applicable), the Trustee, on behalf of
the
Supplemental Interest Trust, shall (upon a Responsible Officer of the Trustee
receiving written notice or having actual knowledge of the occurrence thereof),
no later than the next Business Day following such failure, breach or
occurrence, notify the Swap Counterparty or the Cap Counterparty and give
any
notice of such failure and make any demand for payment pursuant to the
Swap
Agreement or the Interest Rate Cap Agreement, as applicable. In the event
that
the Swap Counterparty’s obligations under the Swap Agreement or the Cap
Counterparty’s obligations under the Interest Rate Cap Agreement are at any time
guaranteed by a third party, then to the extent that the Swap Counterparty
or
Cap Counterparty fails to make any payment or delivery required under terms
of
the Swap Agreement or the Interest Rate Cap Agreement, as applicable, the
Trustee, on behalf of the Supplemental Interest Trust, shall (upon a Responsible
Officer of the Trustee receiving written notice or having actual knowledge
of
the occurrence thereof), no later than the next Business Day following
such
failure, demand that such guarantor make any and all payments then required
to
be made by the applicable guarantor.
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
(a) The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement
to the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are
not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (c), (e) and (l), and any Swap
Termination Payment required pursuant to Sections 5.02(b), (c), (e) and
(l),
into the Swap Account, (B) to deposit any amounts from the Basis Risk Reserve
Fund required pursuant to Sections 5.02(f)(iv)(C) and Section 5.02(f)(vi)
into
the Swap Account, (C) to pay any Net Swap Payment required pursuant to
Section
5.02(g)(i) or Section 5.02(l), as applicable, or Swap Termination Payment
required pursuant to Sections 5.02(g)(ii), Section 5.02(g)(x), or Section
5.02(l), as applicable to the Swap Counterparty and (D) to establish and
maintain the Swap Account, to make such deposits thereto, investments therein
and distributions therefrom as are required pursuant to Section 5.07. For
the
protection and enforcement of the provisions of this Section the Swap
Counterparty shall be entitled to such relief as can be given either at
law or
in equity.
114
|
Section
5.09.
|
Termination
Receipts.
|
(a) In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Supplemental
Interest Trust and paid pursuant to Section 5.02(g)(x) or Section 5.02(l),
as
applicable (“Termination Receipts”) will be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Trustee (the “Swap Termination Receipts Account”) and (ii) any amounts
received from a replacement Swap Counterparty (“Swap Replacement Receipts”) will
be deposited in a segregated non-interest bearing account which shall be
an
Eligible Account established by the Trustee (the “Swap Replacement Receipts
Account”). The Trustee shall invest, or cause to be invested, funds held in the
Swap Termination Receipts Account and the Swap Replacement Receipts Account
in
time deposits of the Trustee as permitted by clause (ii) of the definition
of
Eligible Investments or as otherwise directed in writing by a majority
of the
Certificateholders. All such investments must be payable on demand or mature
on
a Swap Payment Date, a Distribution Date or such other date as directed
by the
Certificateholders. All such Eligible Investments will be made in the name
of
the Trustee of the Supplemental Interest Trust (in its capacity as such)
or its
nominee. All income and gain realized from any such investment shall be
deposited in the Swap Termination Receipts Account or the Swap Replacement
Receipts Account, as applicable, and all losses, if any, shall be borne
by the
related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall upon
written direction of, and with the assistance and cooperation of the Depositor,
use amounts on deposit in the Swap Termination Receipts Account, if necessary,
to enter into replacement Swap Agreement(s) or to execute any other agreements
with respect to such replacement guarantor, if applicable, which shall
be
executed and delivered by the Trustee on behalf of the Supplemental Interest
Trust upon receipt of written confirmation from each Rating Agency (if
required
pursuant to the terms of the Swap Agreement) that such replacement Swap
Agreement(s) will not result in the reduction or withdrawal of the rating
of any
outstanding Class of Certificates with respect to which it is a Rating
Agency.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such
replacement swap agreement, be paid to the Class X Certificates.
115
(b) In
the
event of an “Early
Termination Event”
as
defined under the Interest Rate Cap Agreement, (i) any Cap Termination
Payment
made by the Cap Counterparty to the Interest Rate Cap Account and paid
pursuant
to Section 5.02(h)(vii) or Section 5.02(m)
(“Cap
Termination Receipts”)
shall
be deposited in a segregated non-interest bearing account which shall be
an
Eligible Account established by the Trustee (the “Cap
Termination Receipts Account”)
and
(ii) any amounts received from a replacement Cap Counterparty (“Cap
Replacement Receipts”)
will be
deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Trustee (the “Cap
Replacement Receipts Account”).
The
Trustee shall invest, or cause to be invested, funds held in the Cap Termination
Receipts Account in time deposits of the Trustee as permitted by clause
(ii) of
the definition of Eligible Investments or as otherwise directed in writing
by a
majority of the Certificateholders. All such investments must be payable
on
demand or mature on a Interest Rate Cap Payment Date, a Distribution Date
or
such other date as directed by the Certificateholders. All such Eligible
Investments shall be made in the name of the Supplemental Interest Trust
or its
nominee. All income and gain realized from any such investment shall be
deposited in the Cap Termination Receipts Account and all losses, if any,
shall
be borne by such account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Interest Rate
Cap
Agreement(s) and the Trustee shall promptly, with the assistance and cooperation
of the Depositor, use amounts on deposit in the Cap Termination Receipts
Account, if necessary, to enter into replacement Interest Rate Cap Agreement(s)
which shall be executed and delivered by the Trustee on behalf of the
Supplemental Interest Trust upon receipt of written confirmation from each
Rating Agency that such replacement Interest Rate Cap Agreement(s) will
not
result in the reduction or withdrawal of the rating of any outstanding
Class of
Certificates with respect to which it is a Rating Agency.
Section
5.10. Final
Maturity Reserve Trust.
(a) A
separate trust is hereby established (the “Final Maturity Reserve Trust”), the
corpus of which shall be held, in trust, for the Certificateholders. The
Trustee, on behalf of the Final Maturity Reserve Trust, shall establish
an
account (the “Final Maturity Reserve Account”), into which LBH shall initially
deposit $1,000. The Final Maturity Reserve Account shall be an Eligible
Account,
and funds on deposit therein shall be held separate and apart from, and
shall
not be commingled with, any other monies, including, without limitation,
other
monies of the Trustee held pursuant to this Agreement.
(b) The
Trustee shall deposit into the Final Maturity Reserve Trust any Final Maturity
Reserve Amount pursuant to Sections 5.02(b)(iii) and 5.02(c)(iii). The
Trustee
shall distribute the funds in the Final Maturity Reserve Account pursuant
to
Section 5.02(j). Notwithstanding the foregoing, the initial deposit of
$1,000
made pursuant to subsection (a) above may be applied by the Trustee to
make any
such distributions.
(c) Funds
in
the Final Maturity Reserve Account shall be invested in Eligible Investments.
Any earnings on such amounts shall be distributed pursuant to Section 5.02(j).
The Class X Certificates shall evidence ownership of the Final Maturity
Reserve
Trust for federal income tax purposes and LBH on behalf of the Holder thereof
shall direct the Trustee, in writing, as to investment of amounts on deposit
therein. LBH shall be liable for any losses incurred on such investments.
In the
absence of written instructions from the Class X Certificateholders as
to
investment of funds on deposit in the Final Maturity Reserve Account, such
funds
shall be invested in the U.S. Bank First American Prime Obligation Fund,
Class A
or a comparable investment vehicle.
116
(d) Upon
termination of the Trust Fund, any amounts remaining in the Final Maturity
Reserve Account shall be distributed pursuant to the priorities in Section
5.02(j).
(e) It
is the
intention of the parties hereto that, for federal and state income and
state and
local franchise tax purposes, the Final Maturity Reserve Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and
until
the date when either (a) there is more than one Class X Certificateholder
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Final Maturity Reserve Trust
for
federal income tax purposes. The Trustee shall notbe responsible for any
entity
level tax reporting for the Final Maturity Reserve Trust.
(f) For
federal income tax purposes, any Certificateholder that receives a principal
payment from the Final Maturity Reserve Trust shall be treated as selling
a
portion of its Certificate to the Class X Certificateholder and as having
received the amount of the principal payment from the Class X Certificateholder
as the proceeds of the sale. The portion of the Certificate that is treated
as
having been sold shall equal the amount of the corresponding reduction
in the
Certificate Principal Amount of such Certificate. Principal payments received
from the Final Maturity Reserve Trust shall not be treated as distributions
from
any REMIC created hereby. All principal distributions from the Final Maturity
Reserve Trust shall be accounted for hereunder in accordance with this
Section
5.10(f).
ARTICLE
VI
CONCERNING
THE TRUSTEE; EVENTS OF DEFAULT
|
Section
6.01.
|
Duties
of Trustee.
|
(a) The
Trustee, except during the continuance of an Event of Default of which
a
Responsible Officer of the Trustee shall have actual knowledge, undertakes
to
perform such duties and only such duties as are specifically set forth
in this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default
has
occurred and has not otherwise been cured or waived, the Trustee (upon
receipt
of actual knowledge thereof by a Responsible Officer of the Trustee) shall
exercise such of the rights and powers vested in it by this Agreement and
use
the same degree of care and skill in their exercise as a prudent Person
would
exercise or use under the circumstances in the conduct of such Person’s own
affairs, unless the Trustee is acting as Master Servicer, in which case
it shall
use the same degree of care and skill as the Master Servicer
hereunder.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
which
are specifically required to be furnished pursuant to any provision of
this
Agreement, shall examine them to determine whether they are on their face
in the
form required by this Agreement; provided,
however,
that the
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or
other
instrument furnished by the Master Servicer, any Servicer, the Swap
Counterparty, the Cap Counterparty or the Credit Risk Manager to the Trustee
pursuant to this Agreement, and shall not be required to recalculate or
verify
any numerical information furnished to the Trustee pursuant to this Agreement.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument
is
found not to conform on its face to the form required by this Agreement
in a
material manner the Trustee shall notify the Person providing such resolutions,
certificates, statements, opinions, reports or other documents of the
non-conformity, and if the instrument is not corrected to the Trustee’s
satisfaction, the Trustee will provide notice thereof to the Certificateholders
and any NIMS Insurer and will, at the expense of the Trust Fund, which
expense
shall be reasonable given the scope and nature of the required action,
take such
further action as directed by the Certificateholders and any NIMS
Insurer.
117
(c) The
Trustee shall not have any liability arising out of or in connection with
this
Agreement, except for its negligence or willful misconduct. No provision
of this
Agreement shall be construed to relieve the Trustee from liability for
its own
negligent action, its own negligent failure to act or its own willful
misconduct; provided,
however,
that:
(i) 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 as provided in Section 6.18 hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have
notice of
any Event of Default (other than resulting from a failure by the Master
Servicer
to furnish information to the Trustee when required to do so) unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received
by the
Trustee at the Corporate Trust Office, and such notice references the Holders
of
the Certificates and this Agreement;
(iii) No
provision of this Agreement shall require the Trustee to expend or risk
its own
funds or otherwise incur any financial liability in the performance of
any of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and none of the provisions contained in this Agreement shall in any
event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this
Agreement;
(iv) The
Trustee shall not be responsible for any act or omission of the Master
Servicer,
any Servicer, the Credit Risk Manager, the Depositor, the Seller, any Custodian,
the Cap Counterparty or the Swap Counterparty.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged
to have
been delivered to or served upon it by the parties as a consequence of
the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trustee shall promptly remit to the Master Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered
to the
Corporate Trust Office of the Trustee and makes reference to this series
of
Certificate or this Agreement, (ii) of which a Responsible Officer has
actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee
to make a determination that the real property to which such document relates
is
a Mortgaged Property.
118
(e) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with
the
direction of any NIMS Insurer or the Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee under this Agreement.
(f) The
Trustee shall not be required to perform services under this Agreement,
or to
expend or risk its own funds or otherwise incur financial liability for
the
performance of any of its duties hereunder or the exercise of any of its
rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none
of the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or any Servicer under this Agreement
or any
Servicing Agreement except during such time, if any, as the Trustee shall
be the
successor to, and be vested with the rights, duties, powers and privileges
of,
the Master Servicer in accordance with the terms of this Agreement.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account or any other account established under this Agreement
resulting from any investment loss on any Eligible Investment included
therein
(except to the extent that the Trustee is the obligor and has defaulted
thereon).
(h) The
Trustee shall not have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing
or to
any rerecording, refiling or redepositing of any thereof, (B) to see to
any
insurance or claim under any Insurance Policy, and (C) to see to the payment
or
discharge of any tax, assessment, or other governmental charge or any lien
or
encumbrance of any kind owing with respect to, assessed or levied against,
any
part of the Trust Fund, the Supplemental Interest Trust or the Final Maturity
Reserve Trust other than from funds available in the Collection Account
or the
Certificate Account, as applicable. Except as otherwise provided herein,
the
Trustee shall not have any duty to confirm or verify the contents of any
reports or certificates of the Master Servicer, any Servicer, the Swap
Counterparty, the Cap Counterparty or the Credit Risk Manager delivered
to the
Trustee pursuant to this Agreement believed by the Trustee to be genuine
and to
have been signed or presented by the proper party or parties.
119
(i) The
Trustee shall not be liable in its individual capacity for an error of
judgment
made in good faith by a Responsible Officer or other officers of the Trustee
unless it shall be proved that the Trustee was negligent in ascertaining
the
pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, none of the Trustee or any
Paying
Agent shall be liable for special, indirect or consequential losses or
damages
of any kind whatsoever (including, but not limited to, lost profits), even
if
the Paying Agent or the Trustee, as applicable, has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(k) The
Trustee shall not be construed to render the Trustee an agent of the Master
Servicer or any Servicer.
(l) For
so
long as the Depositor is subject to Exchange Act reporting requirements
for the
Structured Asset Securities Corporation Mortgage Loan Trust 2007-BC2
transaction, the Trustee shall give prior written notice to the Sponsor,
the
Master Servicer and the Depositor of the appointment of any Subcontractor
by it
and a written description (in form and substance satisfactory to the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized
by the
Trustee, specifying (A) the identity of each such Subcontractor and (B)
which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance provided by each such
Subcontractor.
(m) The
Paying Agent and Certificate Registrar shall have the same rights, protections,
immunities and indemnities as are afforded to the Trustee pursuant to this
Article VI.
|
Section
6.02.
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 6.01:
(a) The
Trustee may request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party
or
parties;
(b) The
Trustee may consult with counsel and any advice of its counsel or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(c) The
Trustee shall not be personally liable for any action taken, suffered or
omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(d) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall
not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so
by any
NIMS Insurer or the Holders of at least a majority in Class Principal Amount
(or
Percentage Interest) of each Class of Certificates; provided,
however,
that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by
the
security afforded to it by the terms of this Agreement, the Trustee may
require
reasonable indemnity against such expense or liability or payment of such
estimated expenses from any NIMS Insurer or the Certificateholders, as
applicable, as a condition to proceeding. The reasonable expense thereof
shall
be paid by the party requesting such investigation and if not reimbursed
by the
requesting party shall be reimbursed to the Trustee by the Trust
Fund;
120
(e) The
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment, provided that the Trustee shall continue to be responsible
for its
duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by
the Trustee;
(f) The
Trustee shall not be under any obligation to exercise any of the trusts
or
powers vested in it by this Agreement or to institute, conduct or defend
any
litigation hereunder or in relation hereto, in each case at the request,
order
or direction of any of the Certificateholders or any NIMS Insurer pursuant
to
the provisions of this Agreement, unless such Certificateholders or any
NIMS
Insurer shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(g) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(h) The
Trustee shall not be required to give any bond or surety in respect of
the
execution of the Trust Fund, the Supplemental Interest Trust or the Final
Maturity Reserve Trust created hereby or the powers granted
hereunder.
|
Section
6.03.
|
Trustee
Not Liable for Certificates.
|
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, any Servicing Agreement, any Custodial Agreement, the Interest
Rate
Cap Agreement or the Swap Agreement, the Certificates (other than the
certificate of authentication on the Certificates) or the Lower Tier REMIC
1
Uncertificated Regular Interests, or of any Mortgage Loan, or related document
save that the Trustee represents that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability
may be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws
affecting the enforcement of the rights of creditors generally, and (B)
general
principles of equity regardless of whether such enforcement is considered
in a
proceeding in equity or at law. The Trustee shall not be accountable for
the use
or application by the Depositor of funds paid to the Depositor in consideration
of the assignment of the Mortgage Loans to the Trust Fund by the Depositor
or
for the use or application of any funds deposited into the Collection Account,
the Certificate Account, any Escrow Account or any other fund or account
maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement, any Servicing
Agreement, any Custodial Agreement, the Swap Agreement, the Interest Rate
Cap
Agreement or the Mortgage Loan Sale Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates or the Lower
Tier
REMIC 1 Uncertificated Regular Interests issued or intended to be issued
hereunder. The Trustee shall not have any responsibility for filing any
financing or continuation statement in any public office at any time or
to
otherwise perfect or maintain the perfection of any security interest or
lien
granted to it hereunder or to record this Agreement.
121
|
Section
6.04.
|
Trustee
May Own Certificates.
|
The
Trustee and any Affiliate or agent of it in its individual or any other
capacity
may become the owner or pledgee of Certificates and may transact banking
and
trust business with the other parties hereto and their Affiliates with
the same
rights it would have if it were not Trustee or such agent.
|
Section
6.05.
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be (i) an institution whose accounts
are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United
States of
America, authorized under such laws to exercise corporate trust powers,
having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not
an
Affiliate of the Master Servicer or any Servicer (except in the case of
the
Trustee). If such corporation or national banking association publishes
reports
of condition at least annually, pursuant to law or to the requirements
of the
aforesaid supervising or examining authority, then, for the purposes of
this
Section, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. In addition,
the
Trustee (i) may not be an originator of Mortgage Loans, the Master Servicer,
a
Servicer, the Depositor or an affiliate of the Depositor unless the Trustee
is
in an institutional trust department of the Trustee and (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization. In case at any time the Trustee shall cease to be eligible
in
accordance with provisions of this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.06.
|
Section
6.06.
|
Resignation
and Removal of Trustee.
|
(a) The
Trustee may at any time resign and be discharged from the trust hereby
created
by giving written notice thereof to the Depositor, the Swap Counterparty,
the
Cap Counterparty, any NIMS Insurer and the Master Servicer. Upon receiving
such
notice of resignation, the Depositor will promptly appoint a successor
trustee
acceptable to any NIMS Insurer by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to each of the Master Servicer and any NIMS
Insurer. If no successor trustee shall have been so appointed and shall
have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
122
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver
of the Trustee of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation, (iii) the Trustee
shall
fail to observe or perform in any material respect any of the covenants
or
agreements of the Trustee contained in this Agreement, including any failure
to
provide the information, reports, assessments or attestations required
pursuant
to Subsection 9.25(a) or 9.25(b) hereof, (iv) a tax is imposed or threatened
with respect to the Trust Fund by any state in which the Trustee or the
Trust
Fund held by the Trustee is located, (v) the continued use of the Trustee
would
result in a downgrading of the rating by any Rating Agency of any Class
of
Certificates with a rating, (vi) the Paying Agent shall fail to provide
the
information required pursuant to Subsection 3.08(b) hereof or (vii) the
Depositor desires to replace the Trustee with a successor trustee, then
the
Depositor, the Master Servicer or any NIMS Insurer shall remove the Trustee
or
the Paying Agent, as applicable, and the Depositor shall appoint a successor
trustee acceptable to any NIMS Insurer and the Master Servicer by written
instrument, one copy of which instrument shall be delivered to the Trustee
so
removed, one copy to the successor trustee and one copy to each of the
Master
Servicer and any NIMS Insurer.
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee to perform its obligations hereunder) may at any time upon
30 days’
written notice to the Trustee and to the Depositor remove the Trustee by
such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall
be
delivered to the Depositor, one copy to the Trustee, one copy each to the
Master
Servicer and any NIMS Insurer; the Depositor shall thereupon appoint a
successor
trustee in accordance with this Section mutually acceptable to the Depositor,
the Master Servicer and any NIMS Insurer.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective
upon
acceptance of appointment by the successor trustee as provided in Section
6.07.
|
Section
6.07.
|
Successor
Trustee.
|
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, any NIMS
Insurer,
the Swap Counterparty and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of
the
predecessor trustee, shall become effective and such successor trustee,
without
any further act, deed or conveyance, shall become fully vested with all
the
rights, powers, duties and obligations of its predecessor hereunder, with
like
effect as if originally named as trustee herein. A predecessor trustee
(or its
custodian) shall deliver to the Trustee or any successor trustee (or assign
to
the Trustee its interest under any Custodial Agreement, to the extent permitted
thereunder), all Mortgage Files and documents and statements related to
each
Mortgage File held by it hereunder, and shall duly assign, transfer, deliver
and
pay over to the successor trustee the entire Trust Fund, together with
all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the predecessor trustee in the administration hereof
as
may be requested by the successor trustee and shall thereupon be discharged
from
all duties and responsibilities under this Agreement. In addition, the
Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully
and certainly vest and confirm in the successor trustee all such rights,
powers,
duties and obligations.
123
(b) No
successor trustee shall accept appointment as provided in this Section
6.07
unless at the time of such appointment such successor trustee shall be
eligible
under the provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section
6.07, the predecessor trustee shall mail notice of the succession of such
trustee to all Holders of Certificates at their addresses as shown in the
Certificate Register and to any Rating Agency. The expenses of such mailing
shall be borne by the predecessor trustee.
(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.07, the
Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
|
Section
6.08.
|
Merger
or Consolidation of Trustee.
|
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee, shall be the successor
to the
Trustee hereunder, without the execution or filing of any paper or any
further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided
that,
such Person shall be eligible under the provisions of Section 6.05. Unless
and
until a Form 15 suspension notice shall have been filed, as a condition
to a
succession to the Trustee under this Agreement by any Person (i) into which
the
Trustee may be merged or consolidated, or (ii) which may be appointed as
a
successor to the Trustee, the Trustee shall notify the Sponsor, the Master
Servicer and the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, of such succession or appointment
and
shall furnish to the Sponsor, the Master Servicer and the Depositor in
writing
and in form and substance reasonably satisfactory to the Sponsor, the Master
Servicer and the Depositor, all information reasonably necessary for the
Trustee
to accurately and timely report, pursuant to Section 6.20, the event under
Item
6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the
Exchange Act are required to be filed under the Exchange Act).
124
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or
the
Certificateholders evidencing more than 50% of the Class Principal Amount
(or
Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved
by the
Trustee and any NIMS Insurer, to act either as co-trustees jointly with
the
Trustee, or as separate trustees, or as custodians, for the purpose of
holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or
the
Trustee has been advised by the Master Servicer that such separate trustee
or
co-trustee is necessary or advisable) under the laws of any state in which
a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state
in
which a property securing a Mortgage Loan is located or in any state in
which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or
custodians so appointed shall be trustees or custodians for the benefit
of all
the Certificateholders and shall have such powers, rights and remedies
as shall
be specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee
an agent
of the Trustee. The obligation of the Trustee to make Advances pursuant
to
Sections 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee. Notwithstanding the foregoing, if such co-custodian
or co-trustee is determined to be a Servicing Function Participant, no
such
co-custodian or co-trustee shall be vested with any powers, rights and
remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the Custodial Agreements,
as
applicable.
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of monies shall be exercised solely by
the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the
extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof
in any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of
any act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
125
(c) Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of
the
trusts conferred, shall be vested with the estates or property specified
in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy given to the
Master
Servicer and any NIMS Insurer.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute
the
Trustee its agent or attorney-in-fact with full power and authority, to
the
extent not prohibited by law, to do any lawful act under or in respect
of this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed,
all of
its estates, properties, rights, remedies and trusts shall vest in and
be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee ) and, if paid by the Trustee, shall
be a
reimbursable expense pursuant to Section 6.12.
(h) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Trustee
shall
not utilize any Subcontractor for the performance of its duties hereunder
if
such Subcontractor would be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB without (a) giving notice to the
Seller,
the Master Servicer, the Sponsor and the Depositor and (b) requiring any
such
Subcontractor to provide to the Trustee an assessment report as provided
in
Section 9.25(a) and an attestation report as provided in Section 9.25(b),
which
reports the Trustee shall include in its assessment and attestation reports.
The
Trustee shall indemnify the Sponsor, the Depositor and the Master Servicer
and
any director, officer, employee or agent of each of the Sponsor, the Depositor
and the Master Servicer and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal
fees and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based upon the failure by the
Trustee
(i) to give notice of the engagement of any Subcontractor or (ii) to require
any
Subcontractor to provide the Trustee, the Master Servicer and the Depositor
the
information, when and as required, pursuant to this Section 6.09(h). This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
126
|
Section
6.10.
|
Authenticating
Agents.
|
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates
by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(b) Any
Person into which any Authenticating Agent may be merged or converted or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be
a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, any NIMS Insurer and the Depositor. Upon receiving
a
notice of resignation or upon such a termination, or in case at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to
the
Depositor and any NIMS Insurer and shall mail notice of such appointment
to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance
of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section
6.10. No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent
shall be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
127
|
Section
6.11.
|
Indemnification
of Trustee.
|
The
Trustee and its directors, officers, employees and agents shall be entitled
to
indemnification from the Trust Fund for any loss, liability or expense
incurred
in connection with any legal proceeding or incurred without negligence
or
willful misconduct on their part (it being understood that the negligence
or
willful misconduct of any Custodian shall not constitute negligence or
willful
misconduct on the part of the Trustee or any of its directors, officers,
employees or agants for such purpose) arising out of, or in connection
with, the
acceptance or administration of the trusts created hereunder or in connection
with the performance of its duties hereunder or under the Swap Agreement,
the
Interest Rate Cap Agreement, the Mortgage Loan Sale Agreement, the Transfer
Agreement, any Servicing Agreement or any Custodial Agreement, including
any
applicable fees and expenses payable pursuant to Section 6.12 and the costs
and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor,
the
Master Servicer, any NIMS Insurer and the Holders written notice thereof
promptly after a Responsible Officer of the Trustee shall have knowledge
thereof
provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s
right to indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor, the Master Servicer and any NIMS Insurer
in
preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not
be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, the Master Servicer and any NIMS Insurer,
which
consent shall not be unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fifth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to
include,
but not be limited to any loss, liability or expense under any environmental
law.
|
Section
6.12.
|
Fees
and Expenses of Trustee and Custodian.
|
The
Trustee shall be entitled to any investment income and earnings on the
Certificate Account (other than any amounts required to be deducted in
respect
of the Custodial Compensation as provided in Section 4.04(c)). Each of
U.S. Bank
National Association, LaSalle Bank National Association and Xxxxx Fargo,
in
their respective capacities as a Custodian, shall be entitled to the Custodial
Compensation provided for in the applicable Custodial Agreement which shall
be
paid by the Trustee as invoiced by each such Custodian first from investment
income and earnings on the Certificate Account and, if insufficient to
pay the
Custodial Compensation, as a corporate obligation of the Trustee. The Trustee
shall be entitled to reimbursement of all reasonable expenses, disbursements
and
advances incurred or made by the Trustee in accordance with this Agreement
(including fees and expenses of its counsel and all persons not regularly
in its
employment and any amounts described in Section 10.01 to which the Trustee
is
entitled as provided therein), except for expenses, disbursements and advances
that either (i) do not constitute “unanticipated expenses” within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii) or (ii) arise from its
negligence, bad faith or willful misconduct. If the Custodial Compensation
is
not fully paid from (i) the Trustee’s own funds or (ii) investment income and
earnings on amounts on deposit in the Certificate Account then prior to any
distribution to Certificateholders pursuant to Section 5.02 hereof, the
Trust
Fund shall immediately reimburse the Trustee, or the applicable Custodian,
as
applicable, upon demand for any such shortfall from amounts on deposit
in the
Certificate Account. To the extent required under Section 20 of the related
Custodial Agreement, the Trustee is hereby authorized to pay any indemnification
amounts from amounts on deposit in the Certificate Account prior to any
distributions to Certificateholders pursuant to Section 5.02
hereof.
128
|
Section
6.13.
|
Collection
of Monies.
|
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand
payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by it pursuant to this Agreement. The Trustee
shall
hold all such money and property received by it as part of the Trust Fund
and
shall distribute it as provided in this Agreement. If the Trustee shall
not have
timely received amounts to be remitted with respect to the Mortgage Loans
from
the Master Servicer, the Trustee shall request the Master Servicer to make
such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amounts, it may withdraw such
request.
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
(a) The
occurrence of any one or more of the following events shall constitute
an “Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) (other than
with
respect to the information referred to in clauses (xix), (xx) and (xxi)
of such
Section 4.03(a)) which continues unremedied for a period of two (2) Business
Days after the date upon which written notice of such failure shall have
been
given to such Master Servicer by the Trustee, or to such Master Servicer
and the
Trustee by the Holders of not less than 25% of the Class Principal Amount
of
each Class of Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time
period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26; or
129
(iii) Except
with respect to those items listed in clause (ii) above, any failure by
the
Master Servicer to duly perform, within the required time period, without
notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied
for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer
by the Trustee, or to the Master Servicer and the Trustee by the Holders
of more
than 50% of the Aggregate Voting Interests of the Certificates or by any
NIMS
Insurer; or
(v) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(vi) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
(vii) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(viii) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting
entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(ix) If
a
representation or warranty set forth in Section 9.14 hereof shall prove
to be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on
which
written notice of such incorrect representation or warranty shall have
been
given to the Master Servicer by the Trustee, or to the Master Servicer
and the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests
of the
Certificates or by any NIMS Insurer; or
130
(x) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or
duties of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee,
any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi) The
Master Servicer has notice or actual knowledge that any Servicer at any
time is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and
the
Master Servicer has not terminated the rights and obligations of such Servicer
under the applicable Servicing Agreement and replaced such Servicer with
a
Xxxxxx Mae- or Xxxxxxx Mac -approved servicer within 60 days of the date
the
Master Servicer receives such notice or acquires such actual knowledge;
or
(xii) After
receipt of notice from the Trustee or any NIMS Insurer, any failure of
the
Master Servicer to remit to the Trustee any payment required to be made
to the
Trustee for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Master Servicer Remittance Date which such
failure
continues unremedied for a period of one Business Day after the date upon
which
notice of such failure shall have been given to the Master Servicer by
the
Trustee.
If
an
Event of Default described in clauses (i) through (xii) of this Section
shall
occur, then, in each and every case, subject to applicable law, so long
as any
such Event of Default shall not have been remedied within any period of
time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing
more
than 50% of the Class Principal Amount of each Class of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and
in and to
the Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (xii) of this Section shall occur, then, in each and every case,
subject
to applicable law, so long as such Event of Default shall not have been
remedied
within the time period prescribed by clause (xii) of this Section 6.14,
the
Trustee, by notice in writing to the Master Servicer, shall promptly terminate
all of the rights and obligations of the Master Servicer hereunder and
in and to
the Mortgage Loans and the proceeds thereof. On or after the receipt by
the
Master Servicer of such written notice, all authority and power of the
Master
Servicer, and only in its capacity as Master Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to
and be
vested in the Trustee; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicing obligations to the Trustee; provided,
further,
the
obligation to make Advances by the Trustee shall be effective upon the
Trustee
providing notice of the termination to the Master Servicer pursuant to
this
Section 6.14. The Trustee is hereby authorized and empowered to execute
and
deliver, on behalf of the defaulting Master Servicer as attorney-in-fact
or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes
of such
notice of termination, whether to complete the transfer and endorsement
or
assignment of the Mortgage Loans and related documents or otherwise. The
defaulting Master Servicer agrees to cooperate with the Trustee in effecting
the
termination of the defaulting Master Servicer’s responsibilities and rights
hereunder as Master Servicer including, without limitation, notifying Servicers
of the assignment of the master servicing function and providing the Trustee
or
its designee all documents and records in electronic or other form reasonably
requested by it to enable the Trustee or its designee to assume the defaulting
Master Servicer’s functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should
have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or
fund
maintained with respect to the Certificates or thereafter received with
respect
to the Mortgage Loans. The Master Servicer being terminated (or the Trust
Fund,
if the Master Servicer is unable to fulfill its obligations hereunder)
as a
result of an Event of Default shall bear all costs of a master servicing
transfer, including but not limited to those of the Trustee reasonably
allocable
to specific employees and overhead, legal fees and expenses, accounting
and
financial consulting fees and expenses, and costs of amending the Agreement,
if
necessary.
131
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or
by the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of master servicing
from
the predecessor Master Servicer, including, without limitation, any costs
or
expenses associated with the complete transfer of all master servicing
data and
the completion, correction or manipulation of such servicing data as may
be
required by the Trustee to correct any errors or insufficiencies in the
master
servicing data or otherwise to enable the Trustee to master service the
Mortgage
Loans properly and effectively. If the terminated Master Servicer does
not pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefore, such reimbursement shall be an expense of the Trust and the
Trustee
shall be entitled to withdraw such reimbursement from amounts on deposit
in the
Certificate Account pursuant to Section 4.04(b); provided that the terminated
Master Servicer shall reimburse the Trust for any such expense incurred
by the
Trust; and provided, further, that the Trustee shall decide whether and
to what
extent it is in the best interest of the Certificateholders to pursue any
remedy
against any party obligated to make such reimbursement.
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period
prior to
such Master Servicer’s termination.
If
any
Event of Default shall occur, the Trustee, upon a Responsible Officer of
the
Trustee becoming aware of the occurrence thereof, shall promptly notify
any NIMS
Insurer, the Swap Counterparty, the Cap Counterparty and each Rating Agency
of
the nature and extent of such Event of Default. The Trustee shall immediately
give written notice to the Master Servicer upon the Master Servicer’s failure to
remit funds to the Trustee on the Master Servicer Remittance Date.
(b) On
and
after the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed,
shall be
the successor in all respects to the Master Servicer in its capacity as
such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on
the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no responsibility for any act or omission
of
the Master Servicer prior to the issuance of any notice of termination.
The
Trustee shall have no liability relating to the representations and warranties
of the Master Servicer set forth in Section 9.14. In the Trustee’s capacity as
such successor, the Trustee shall have the same limitations on liability
herein
granted to the Master Servicer. As compensation therefor, the Trustee shall
be
entitled to receive all compensation payable to the Master Servicer under
this
Agreement, including the Master Servicing Fee.
132
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so
act, or
shall, if it is unable to so act, request the Trustee to appoint, petition
a
court of competent jurisdiction to appoint, or appoint on its own behalf
any
established housing and home finance institution servicer, master servicer,
servicing or mortgage servicing institution having a net worth of not less
than
$15,000,000 and meeting such other standards for a successor master servicer
as
are set forth in this Agreement, as the successor to such Master Servicer
in the
assumption of all of the responsibilities, duties or liabilities of the
Master
Servicer hereunder. Such successor master servicer shall have no responsibility
for any act or omission of the Master Servicer prior to such successor’s
assumption of the Master Servicer’s rights and obligations hereunder and such
successor master servicer shall also have no liability relating to the
representations and warranties of the Master Servicer set forth in Section
9.14.
Any entity designated by the Trustee as a successor master servicer may
be an
Affiliate of the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain
liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting
the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other
form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should
have
been deposited by the Master Servicer in the Collection Account and any
other
account or fund maintained with respect to the Certificates or the Lower
Tier
REMIC 1 Uncertificated Regular Interests or thereafter be received with
respect
to the Mortgage Loans. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion
thereof
caused by (i) the failure of the Master Servicer to deliver, or any delay
in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure
of the
Master Servicer to deliver the Mortgage Loan data to the Trustee as required
by
this Agreement or (iv) restrictions imposed by any regulatory authority
having
jurisdiction over the Master Servicer.
133
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
During
the continuance of any Event of Default, so long as such Event of Default
shall
not have been remedied, the Trustee, in addition to the rights specified
in
Section 6.14, shall have the right, in its own name and as trustee of an
express
trust, to take all actions now or hereafter existing at law, in equity
or by
statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy
provided for by this Agreement shall be exclusive of any other remedy,
and each
and every remedy shall be cumulative and in addition to any other remedy,
and no
delay or omission to exercise any right or remedy shall impair any such
right or
remedy or shall be deemed to be a waiver of any Event of Default.
|
Section
6.16.
|
Waiver
of Defaults.
|
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a
default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of
100% of
the affected Certificateholders and with the consent of any NIMS Insurer.
Upon
any such waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
|
Section
6.17.
|
Notification
to Holders.
|
Upon
termination of the Master Servicer or appointment of a successor to the
Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register, any NIMS Insurer, the
Swap
Counterparty and the Cap Counterparty. The Trustee shall also, within 45
days
after the occurrence of any Event of Default known to a Responsible Officer
of
the Trustee, give written notice thereof to any NIMS Insurer and the
Certificateholders, unless such Event of Default shall have been cured
or waived
prior to the issuance of such notice and within such 45-day period.
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of Default.
|
Subject
to the provisions of Section 8.01 hereof, during the continuance of any
Event of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates
affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including,
without
limitation, (i) the conducting or defending of any administrative action
or
litigation hereunder or in relation hereto and (ii) the terminating of
the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of
the
Certificateholders or any NIMS Insurer, unless such Certificateholders
or any
NIMS Insurer shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein
or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction
if the
Trustee, in accordance with an Opinion of Counsel acceptable to any NIMS
Insurer, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which
it is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Certificateholders.
134
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event
of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer, any NIMS Insurer,
the
Swap Counterparty and the Cap Counterparty, as applicable.
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
(a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based
upon information calculated in accordance with this Agreement pursuant
to
instructions given by the Depositor, and the Trustee shall file federal
tax
returns, all in accordance with Article X hereof. If the Trustee determines
that
a state tax return or other return is required, then, at its sole expense,
the
Trustee shall prepare and file such state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund,
and, if
required by state law, and shall file any other documents to the extent
required
by applicable state tax law (to the extent such documents are in the Trustee’s
possession). The Trustee shall forward copies to the Depositor of all such
returns and supplemental tax information and such other information within
the
Trustee’s control as the Depositor may reasonably request in writing and furnish
to each Certificateholder, such forms and such information within the control
of
the Trustee as are required by the Code and the REMIC Provisions to be
furnished
to them (other than any Form 1099s). The Master Servicer shall indemnify
the
Trustee for any liability of or assessment against the Trustee arising
out of or
based upon any error in any of such tax or information returns arising
out of or
based upon errors in the information provided by such Master
Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund and each of the REMICs specified in the Preliminary
Statement, an application for an employer identification number on IRS
Form SS-4
or by any other acceptable method. The Trustee shall also file a Form 8811
as
required. The Trustee, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned, shall upon request promptly forward a copy
of
such notice to the Trustee and the Depositor. The Trustee shall have no
obligation to verify the information in any Form 8811 or Form SS-4
filing.
135
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Trustee shall, in accordance with industry standards
and the rules of the Commission as in effect from time to time (the “Rules”),
prepare and file with the Commission via the Electronic Data Gathering
and
Retrieval System (“XXXXX”), the reports listed in subsections (d) through (g) of
this Section 6.20 in respect of the Trust Fund as and to the extent required
under the Exchange Act.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trustee shall prepare and file on behalf of the Trust
Fund
any Form 10-D required by the Exchange Act, in form and substance as required
by
the Exchange Act. The Trustee shall file each Form 10-D with a copy of
the
related Distribution Date Statement and a copy of each report made available
by
the Credit Risk Manager pursuant to Section 9.34 (provided each such report
is
made available to the Trustee in a format compatible with XXXXX filing
requirements) attached thereto. Any disclosure in addition to the Distribution
Date Statement that is required to be included on Form 10-D (“Additional Form
10-D Disclosure”) shall be determined and prepared by and at the direction of
the Depositor pursuant to the following paragraph and the Trustee will
have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit P-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-BC2 transaction, as identified in
Exhibit
P-1, shall provide to the Depositor and the Trustee, to the extent known
by a
responsible officer thereof, in XXXXX-compatible form (which may be Word
or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Trustee and such party, the form and substance
of
any Additional Form 10-D Disclosure, if applicable, and include with such
Additional Form 10-D Disclosure an Additional Disclosure Notification in
the
form attached hereto as Exhibit P-4 and (B) the Depositor will approve,
as to
form and substance, or disapprove, as the case may be, the inclusion of
the
Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be responsible
for any reasonable fees and expenses assessed or incurred by the Trustee
in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Trustee shall forward electronically a copy
of the
Form 10-D to the Exchange Act Signing Party for review and approval. If
the
Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. No later than two
Business
Days prior to the 15th
calendar
day after the related Distribution Date, a duly authorized representative
of the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy
to follow
by overnight mail) to the Trustee. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Trustee will follow
the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly
(but
no later than one Business Day) after the deadline for filing such report
with
the Commission, the Trustee will make available on its internet website
a final
executed copy of each Form 10-D prepared and filed by the Trustee. Each
party to
this Agreement acknowledges that the performance by the Trustee of its
duties
under this Section 6.20(d) related to the timely preparation and filing
of Form
10-D is contingent upon such parties strictly observing all applicable
deadlines
in the performance of their duties under this Section 6.20(d). The Trustee
shall
have no liability for any loss, expense, damage, claim arising out of or
with
respect to any failure to properly prepare and/or timely file such Form
10-D,
where such failure results from the Trustee’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto
needed
to prepare, arrange for execution or file such Form 10-D, not resulting
from its
own negligence, bad faith or willful misconduct.
136
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it
“(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” Unless the Depositor has given the
Trustee prior notice as provided below, at the date of filing of each report
on
Form 10-D, the Depositor shall be deemed to represent to the Trustee that,
as of
such date, the Depositor has filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement
for
the past 90 days. The Depositor shall notify the Trustee in writing, no
later
than the fifth calendar day after the related Distribution Date with respect
to
the filing of a report on Form 10-D if the answer to the questions should
be
“no.” The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(e) Reports
Filed on Form 10-K.
(i) Unless
and until a Form 15 suspension notice shall have been filed, within 90
days
after the end of each fiscal year of the Trust Fund or such earlier date
as may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, the Trustee shall prepare and file on
behalf of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. Each such Form 10-K shall include the following items, in each case
to the
extent they have been delivered to the Trustee within the applicable time
frames
set forth in this Agreement and in the related Servicing Agreements and
the
related Custodial Agreements, (A) an annual compliance statement for each
Servicer, each Additional Servicer and the Master Servicer, as described
under
Section 9.26 hereof and in each Servicing Agreement, (B)(I) the annual
reports
on assessment of compliance with servicing criteria for each Servicer,
the
Custodians, each Additional Servicer, the Master Servicer, the Credit Risk
Manager, any Servicing Function Participant, the Paying Agent (if other
than the
Trustee) and the Trustee (each, a “Reporting Servicer”), as described under
Section 9.25(a) hereof and in each Servicing Agreement and Custodial Agreement,
and (II) if any Reporting Servicer’s report on assessment of compliance with
servicing criteria described under Section 9.25(a) hereof or in each Servicing
Agreement or Custodial Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 9.25(a) hereof or in any Servicing Agreement or
Custodial Agreement is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is
not
included, (C)(I) the registered public accounting firm attestation report
for
each Reporting Servicer, as described under Section 9.25(b) hereof and
in each
Servicing Agreement and Custodial Agreement and (II) if any registered
public
accounting firm attestation report described under Section 9.25(b) hereof
or in
any Servicing Agreement or Custodial Agreement identifies any material
instance
of noncompliance, disclosure identifying such instance of noncompliance,
or if
any such registered public accounting firm attestation report is not included
as
an exhibit to such Form 10-K, disclosure that such report is not included
and an
explanation why such report is not included, and (D) a Xxxxxxxx-Xxxxx
Certification. Any disclosure or information in addition to (A) through
(D)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Trustee will have
no duty
or liability for any failure hereunder to determine or prepare any Additional
Form 10-K Disclosure, except as set forth in the next paragraph.
137
(ii) As
set
forth on Exhibit P-2 hereto, no later than March 15 of each year that the
Trust
Fund is subject to the Exchange Act reporting requirements, commencing
in 2008,
(A) certain parties to the Structured Asset Securities Corporation Mortgage
Loan
Trust 2007-BC2 transaction, as identified in Exhibit P-2, shall provide
to the
Depositor and the Trustee, to the extent known by a responsible officer
thereof,
in XXXXX-compatible form (which may be Word or Excel documents easily
convertible to XXXXX format), or in such other form as otherwise agreed
upon by
the Trustee and such party, the form and substance of any Additional Form
10-K
Disclosure, if applicable, and include with such Additional Form 10-K
Disclosure, an Additional Disclosure Notification in the form attached
hereto as
Exhibit P-4 and (B) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Trustee has no duty under this Agreement to
monitor
or enforce the performance by the parties listed on Exhibit P-2 of their
duties
under this paragraph or proactively solicit or procure from such parties
any
Form 10-K Disclosure Information. The Sponsor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Additional Form 10-K Disclosure on Form 10-K pursuant
to this
paragraph.
(iii) After
preparing the Form 10-K, the Trustee shall forward electronically a copy
of the
Form 10-K to the Exchange Act Signing Party for review and approval. If
the
Master Servicer is the Exchange Act Signing Party and the Form 10-K includes
Additional Form 10-K Disclosure, then the Form 10-K shall also be electronically
distributed to the Depositor for review and approval. No later than the
close of
business New York City time on the fourth Business Day prior to the 10-K
Filing
Deadline, a senior officer of the Exchange Act Signing Party shall sign
the Form
10-K and return an electronic or fax copy of such signed Form 10-K (with
an
original executed hard copy to follow by overnight mail) to the Trustee.
If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection
(g) of
this Section 6.20. Promptly (but no later than one Business Day) after
the
deadline for filing such report with the Commission, the Trustee will make
available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Trustee. The parties to this Agreement acknowledge
that the performance by the Trustee of its duties under this Section 6.20(e)
related to the timely preparation and filing of Form 10-K is contingent
upon
such parties (and any Additional Servicer or Servicing Function Participant)
strictly observing all applicable deadlines in the performance of their
duties
under this Section 6.20(e), Section 9.25(a), Section 9.25(b) and Section
9.26.
The Trustee shall have no liability for any loss, expense, damage, claim
arising
out of or with respect to any failure to properly prepare and/or timely
file
such Form 10-K, where such failure results from the Trustee’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form
10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
138
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Trustee (including
in
its capacity as Paying Agent, if applicable) and the Paying Agent (if other
than
the Trustee) and, if the Depositor is the Exchange Act Signing Party, the
Master
Servicer, shall, and the Paying Agent (if other than the Trustee), the
Trustee
(including in its capacity as Paying Agent, if applicable) and the Master
Servicer (if applicable) shall cause any Servicing Function Participant
engaged
by it to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the
“Certifying Person”), by March 15 of each year in which the Trust Fund is
subject to the reporting requirements of the Exchange Act (each, a “Back-Up
Certification”), (x) in the case of the Master Servicer, in the form attached
hereto as Exhibit Q-1, (y) in the case of the Trustee, the form attached
hereto
as Exhibit Q-2, and (z) in the case of the Paying Agent (if other than
the
Trustee), such other form as agreed to between it and the Exchange Act
Signing
Party, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. The senior officer of the Exchange Act Signing Party shall
serve as the Certifying Person on behalf of the Trust Fund. In the event
the
Master Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant engaged by such parties is terminated or resigns pursuant to
the
terms of this Agreement, such party or Servicing Function Participant shall
provide a Back-Up Certification to the Certifying Person pursuant to this
Section 6.20(e)(iv) with respect to the period of time it was subject to
this
Agreement.
139
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund
for any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
(vi) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it
“(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” Unless the Depositor has given the
Trustee prior notice as provided below, at the date of filing of each report
on
Form 10-K, the Depositor shall be deemed to represent to the Trustee that,
as of
such date, the Depositor has filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement
for
the past 90 days. The Depositor shall notify the Trustee in writing, no
later
than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”) or such later date as may be
required by the Commission, and if requested by the Depositor, the Trustee
shall
prepare and file on behalf of the Trust Fund any Form 8-K, as required
by the
Exchange Act; provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Trustee will have
no duty
or liability for any failure hereunder to determine or prepare any Form
8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit P-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the second Business Day after the occurrence of a Reportable Event (A)
certain
parties to the Structured Asset Securities Corporation Mortgage Loan Trust
2007-BC2 transaction, as identified in Exhibit P-3, shall provide to the
Depositor and the Trustee, to the extent known by a responsible officer
thereof,
in XXXXX-compatible form (which may be Word or Excel documents easily
convertible to XXXXX format), or in such other form as otherwise agreed
upon by
the Trustee and such party, the form and substance of any Form 8-K Disclosure
Information, if applicable, and include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached
hereto
as Exhibit P-4 and (B) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Trustee has no duty under this Agreement to monitor or
enforce
the performance by the parties listed on Exhibit P-3 of their duties under
this
paragraph or proactively solicit or procure from such parties any Form
8-K
Disclosure Information. The Sponsor will be responsible for any reasonable
fees
and expenses assessed or incurred by the Trustee in connection with including
any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
140
(iii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the third Business Day after the Reportable
Event, a
copy of the Form 8-K to the Exchange Act Signing Party for review and approval.
If the Master Servicer is the Exchange Act Signing Party, then the Form
8-K
shall also be electronically distributed to the Depositor for review and
approval. No later than Noon New York City time on the fourth Business
Day after
the Reportable Event, a senior officer of the Exchange Act Signing Party
shall
sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K
needs to be amended, the Trustee will follow the procedures set forth in
subsection (g) of this Section 6.20. Promptly (but no later than one Business
Day) after the deadline for filing such Form 8-K with the Commission, the
Trustee will make available on its internet website a final executed copy
of
each Form 8-K prepared and filed by it pursuant to this Section 6.20(f).
The
parties to this Agreement acknowledge that the performance by the Trustee
of its
duties under this Section 6.20(f) related to the timely preparation and
filing
of Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 6.20(f).
The
Trustee shall have no liability for any loss, expense, damage or claim
arising
out of or with respect to any failure to properly prepare and/or timely
file
such Form 8-K, where such failure results from the Trustee’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form
8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(g) Suspension
of Reporting Obligations; Amendments; Late Filings.
(i) On
or
before January 30th
of the
first year in which the Trustee is able to do so under applicable law,
unless
otherwise directed by the Depositor, the Trustee shall prepare and file
a Form
15 relating to the automatic suspension of reporting in respect of the
Trust
Fund under the Exchange Act. The Paying Agent is entitled to assume that
a Form
15 will be filed for such year unless the Trustee notifies the Paying Agent
that
a Form 15 will not be filed.
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Trustee will promptly
notify the Depositor. In the case of Form 10-D and 10-K, the parties to
this
Agreement and each Servicer will cooperate to prepare and file a Form 12b-25
and
a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act.
In the case of Form 8-K, the Trustee will, upon receipt of all required
Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event
that any
previously filed Form 8-K, 10-D or 10-K needs to be amended with respect
to an
additional disclosure item, the Trustee will notify the Depositor and any
applicable party affected thereby and such parties will cooperate to prepare
any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K shall be signed by a senior officer or a duly authorized
representative, as applicable, of the Exchange Act Signing Party. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 6.20(g) related to the timely preparation and filing
of Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. The Trustee shall
have
no liability for any loss, expense, damage, claim arising out of or with
respect
to any failure to properly prepare and/or timely file any such Form 15,
Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such failure
results
from the Trustee’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange
for
execution or file such Form 15, Form 12b-25 or any amendments to Forms
8-K, 10-D
or 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
141
(h) Any
party
that signs any Exchange Act report that the Trustee is required to file
shall
provide to the Trustee prompt notice of the execution of such Exchange
Act
report along with the name and contact information for the person signing
such
report and shall promptly deliver to the Trustee the original executed
signature
page for such report. In addition, each of the parties agrees to provide
to the
Trustee such additional information related to such party as the Trustee
may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance hereunder.
(i) The
Depositor and the Master Servicer, by mutual agreement, shall determine
which of
the Depositor or the Master Servicer shall be the initial Exchange Act
Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act
Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree
to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change. Any notice delivered
pursuant to this Section 6.20 may be by fax or electronic copy notwithstanding
the notice provisions of Section 11.07.
|
Section
6.21.
|
Reporting
Requirements of the Commission.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections
6.01 and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the
Master
Servicer and the Depositor with the provisions of Regulation AB, as such
may be
amended or clarified from time to time. Therefore, each of the parties
agrees
that (a) the obligations of the parties hereunder shall be interpreted
in such a
manner as to accomplish compliance with Regulation AB, (b) the parties’
obligations hereunder will be supplemented and modified as necessary to
be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB
and (c) the parties shall comply with reasonable requests made by the Sponsor,
the Master Servicer, the Depositor or the Trustee for delivery of additional
or
different information, to the extent that such information is available
or
reasonably attainable within such time frame as may be requested, as the
Sponsor, the Master Servicer, the Depositor or the Trustee may determine
in good
faith is necessary to comply with the provisions of Regulation AB.
142
|
Section
6.22.
|
No
Merger.
|
The
Trustee shall not cause or otherwise knowingly permit the assets of the
Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
|
Section
6.23.
|
Indemnification
by the Trustee.
|
The
Trustee agrees to indemnify the Depositor and the Master Servicer, and
each of
their respective directors, officers, employees and agents and the Trust
Fund
and hold each of them harmless from and against any losses, damages,
penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments,
and
any other costs, fees and expenses that any of them may sustain arising
out of
or based upon the engagement of any Subcontractor in violation of Section
6.01(l) or any failure by the Trustee to deliver when
and
as required information pursuant to Section 6.01(m), the disclosure applicable
to the Trustee pursuant to Sections 6.20(c)(ii), 6.20(d)(ii) and 6.20(e)(ii),
the certification applicable to the Trustee pursuant to Section 6.20(d)(iv)
or
any assessment of compliance pursuant to Section 9.25(a).
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in
Section
7.02, the obligation of the Master Servicer to make a final remittance
to the
Trustee pursuant to Section 4.01 and the obligations of the Master Servicer
to
the Trustee pursuant to Sections 9.10, 9.14 and 9.31) shall terminate on
the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan
remaining in the Trust Fund and the disposition of all REO Property, (ii)
the
sale of the property held by the Trust Fund in accordance with Section
7.01(b)
and (iii) the Latest Possible Maturity Date (each, a “Trust Fund Termination
Event”); provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as
a
“qualified liquidation” under the REMIC Provisions.
143
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer or LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller, which consent shall not be
unreasonably withheld, has the option to cause the Trust Fund to adopt
a plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all
of its
property (each such option, a “Call Option”); provided,
however,
that
any purchase of the Trust Fund’s property on or before the Distribution Date
that is one year after the Initial Optional Termination Date shall be made
by
the Bid Holder pursuant to Section 7.01(d) below. Upon exercise of such
option,
the property of the Trust Fund shall be sold to the Master Servicer at
a price
(the “Termination Price”) equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest
accrued
thereon at the applicable Mortgage Rate with respect to any Mortgage Loan
to the
Due Date in the Collection Period immediately preceding the related Distribution
Date to the date of such repurchase, (ii) the fair market value of any
REO
Property and any other property held by any REMIC, such fair market value
to be
determined by an independent appraiser or appraisers mutually agreed upon
by the
Master Servicer, any NIMS Insurer and the Trustee (reduced, in the case
of REO
Property, by (1) reasonably anticipated disposition costs and (2) any amount
by
which the fair market value as so reduced exceeds the outstanding principal
balance of the related Mortgage Loan plus interest accrued thereon at the
applicable Net Mortgage Rate to the date of such purchase), (iii) any
unreimbursed Servicing Advances, (iv) any Net Swap Payments then remaining
unpaid and any Swap Termination Payment payable to the Swap Counterparty
as a
result of a termination pursuant to this Section 7.01 and (v) any amounts
on
deposit in the Final Maturity Reserve Account; provided,
however, if
there
are any NIM Securities outstanding, the Master Servicer may only exercise
its
option after receiving the prior written consent of the holders of such
NIM
Securities and, if such consent is given, the Termination Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities
and (3)
any other reimbursable expenses owed by the issuer of the NIM Securities
(the
“NIM Redemption Amount”). The Master Servicer, each Servicer, the Trustee and
the Custodians shall be reimbursed from the Termination Price for any Mortgage
Loan or related REO Property for any Advances made or other amounts advanced
with respect to the Mortgage Loans that are reimbursable to any such entity
under this Agreement, the applicable Servicing Agreement or the Custodial
Agreement, together with any accrued and unpaid compensation and any other
amounts due to the Master Servicer or the Trustee hereunder or the Servicers
or
the Custodians. If the NIMS Insurer directs the Master Servicer to exercise
its
right to cause the Trust Fund to adopt a plan of complete liquidation as
described above, then (i) the Master Servicer shall cause the Trust Fund
to
adopt a plan of complete liquidation as described above, (ii) the NIMS
Insurer
shall remit the Termination Price in immediately available funds to the
Master
Servicer at least three Business Days prior to the applicable Distribution
Date
and, upon receipt of such funds from the NIMS Insurer, the Master Servicer
shall
promptly deposit such funds in the Collection Account and (iii) upon termination
of the Trust Fund, the Trustee will transfer the property of the Trust
Fund to
the NIMS Insurer. The NIMS Insurer shall be obligated to reimburse the
Master
Servicer and the Trustee for its reasonable out-of-pocket expenses incurred
in
connection with its termination of the Trust Fund at the direction of the
NIMS
Insurer and shall indemnify and hold harmless the Master Servicer and the
Trustee for any losses, liabilities or expenses resulting from any claims
arising out of or relating to the Master Servicer’s termination of the Trust
Fund at the direction of the NIMS Insurer, except to the extent such losses,
liabilities or expenses arise out of or result from the Master Servicer’s
negligence, bad faith or willful misconduct.
144
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date
and provided there are no NIM Securities outstanding, the Master Servicer,
with
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option to purchase all of the Lower Tier REMIC 1
Uncertificated Regular Interests. Upon exercise of such option, the Lower
Tier
REMIC 1 Uncertificated Regular Interests shall be sold to the Master Servicer
at
a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests Purchase
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon
at the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in
the Collection Period immediately preceding the related Distribution Date
to the
date of such repurchase and (ii) the fair market value of any REO Property
and
any other property held by any REMIC, such fair market value to be determined
by
an independent appraiser or appraisers mutually agreed upon by the Master
Servicer, any NIMS Insurer and the Trustee (reduced, in the case of REO
Property, by (1) reasonably anticipated disposition costs and (2) any amount
by
which the fair market value as so reduced exceeds the outstanding principal
balance of the related Mortgage Loan plus interest accrued thereon at the
applicable Net Mortgage Rate to the date of such purchase). If the Master
Servicer elects to exercise such option, each REMIC created pursuant to
this
Agreement (other than REMIC 1) shall be terminated in such a manner so
that the
termination of each such REMIC shall qualify as a “qualified liquidation” under
the REMIC Provisions and the Lower Tier REMIC 1 Uncertificated Regular
Interests
and the Class LT-R Certificates will evidence the entire beneficial interest
in
the property of the Trust Fund. Following a purchase of the Lower Tier
REMIC 1
Uncertificated Regular Interests pursuant to this subsection, the Trust
Fund
(and REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Sections 7.03(a)(iii) and 5.02. The Trust Fund will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
(d) (i)
Prior
to exercising the Call Option pursuant to Section 7.01(b) or the Regular
Interests Purchase Option pursuant to Section 7.01(c), the Master Servicer
shall
on the first Business Day of the month of the occurrence of the Initial
Optional
Termination Date, and for so long as the Master Servicer shall not have
exercised the Call Option or the Regular Interests Purchase Option, on
the first
Business Day of each succeeding month (each, a “Bid Month”), the Master Servicer
shall give written notice in the form attached hereto as Exhibit Y (the
“Call
Option Notice”) to each Call Option Holder.
(ii) Not
later
than three (3) Business Days prior to the related Bid Due Date, the Master
Servicer shall give written notice to each Call Option Holder of the Termination
Price for the related Distribution Date.
(iii) Not
later
than the 15th day (or if such date is not a Business Day, the immediately
succeeding Business Day) of each Bid Month (the “Bid Due Date”), if any Call
Option Holder desires that the Master Servicer exercise the option to purchase
the Mortgage Loans and certain other property of the Trust Fund, such Call
Option Holder shall give written notice in the form attached hereto as
Exhibit Z
(the “Purchaser Call Option Notice”) to the Master Servicer, requesting that the
Master Servicer exercise such option on behalf of such Call Option Holder.
The
Purchaser Call Option Notice shall include the amount to be paid by a Call
Option Holder with respect to the proceeds or assets to be received by
the
Master Servicer for the Mortgage Loans and certain other property of the
Trust
Fund (the “Bid Price”); provided,
that
the Bid Price must be equal to or greater than the Termination
Price.
145
(iv) One
(1)
Business Day after the related Bid Due Date, the Master Servicer shall
notify
the Call Option Holder, if any, that has submitted the highest Bid Price
(the
“Bid Holder”) that such Bid Holder has the right to direct the Master Servicer
to exercise the option to purchase the Mortgage Loans and certain other
property
of the Trust Fund. The Master Servicer shall thereafter notify any Call
Option
Holder that did not submit the highest Bid Price (or did not submit a Purchaser
Call Option Notice) of the amount of the highest Bid Price. If two or more
Call
Option Holder shall have bid the same Bid Price, the Bid Holder shall be
the
Call Option Holder with the greater Percentage Interest in the NIM Residual
Securities or Class X Certificates, as applicable. If the Master Servicer
does
not receive any Purchaser Call Option Notices by such Bid Due Date, or
if no
Purchaser Call Option Notice specifies a Bid Price equal to or greater
than the
Termination Price, then the Master Servicer shall not exercise the option
to
purchase the Mortgage Loans and certain other property of the Trust Fund
on such
Distribution Date (other than in accordance with clause (vii)
below).
(v) Not
later
than three (3) Business Days immediately preceding the Distribution Date
in the
related Bid Month, the Bid Holder shall remit the Bid Price as specified
in the
Purchaser Call Option Notice to the Master Servicer, in immediately available
funds. Upon receipt of such funds from the Bid Holder, the Master Servicer
shall
promptly deposit the Termination Price in the Collection Account for subsequent
deposit in the Certificate Account in accordance with this Trust Agreement.
Any
amounts received by the Master Servicer from the Bid Holder in excess of
the
Termination Price shall be remitted to the Trustee for distribution to
the Call
Option Holders. In no event shall any such excess be treated as being paid
by
any REMIC created hereby.
(vi) If
the
Bid Holder directs the Master Servicer to exercise the option to purchase
the
Mortgage Loans and certain other property of the Trust Fund, then the Master
Servicer shall (i) cause the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property and (ii)
instruct the Trustee upon termination of the Trust Fund to transfer the
property
of the Trust Fund to the Bid Holder. The Bid Holder shall be obligated
to
reimburse the Master Servicer for its reasonable out-of-pocket expenses
incurred
in connection with its exercise of the option to purchase the Mortgage
Loans and
certain other property of the Trust Fund and to indemnify and hold harmless
the
Master Servicer for any losses, liabilities or expenses resulting from
any
claims directly resulting from or relating to the Master Servicer’s exercise of
such option, except to the extent such losses, liabilities or expenses
arise out
of or result from the Master Servicer’s negligence, bad faith or willful
misconduct. The terms of such expense reimbursement and the extent of such
indemnity may be amended accordant to an agreement between the Master Servicer
and the Bid Holder.
146
(vii) Commencing
on the Distribution Date of the one year anniversary of the Initial Optional
Termination Date, and on each Distribution Date thereafter, the Master
Servicer
shall have the right to exercise the Call Option or the Regular Interests
Purchase Option. If the Master Servicer desires to exercise the Call Option
or
the Regular Interests Purchase Option, the Master Servicer shall notify
the Call
Option Holders pursuant to a Call Option Notice that it desires to exercise
such
Call Option or such Regular Interest Purchase Option, as applicable, on
the
immediately succeeding Distribution Date. If one or more Call Option Holders
submit a Purchaser Call Option Notice on or before the immediately succeeding
Bid Due Date, then, the Master Servicer shall follow the procedures set
forth in
clauses (iv) through (vi) above. However, if no Call Option Holder submits
a
Purchaser Call Option Notice on or before the immediately succeeding Bid
Due
Date, then, on the immediately succeeding Distribution Date, the Master
Servicer
may exercise the its right to purchase the Mortgage Loans and other property
of
the Trust Fund pursuant to Section 7.01(b) or the Lower Tier REMIC 1
Uncertificated Regular Interests pursuant to Section 7.01(c).
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC
1
Uncertificated Regular Interests.
|
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Trustee by first
class
mail to Certificateholders mailed promptly (and in no event later than
five
Business Days) (x) after the Trustee has received notice from the Master
Servicer or the LTURI-holder, as applicable, of its election to cause (1)
the
sale of all of the property of the Trust Fund pursuant to Section 7.01(b)
or (2)
the purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests
pursuant
to Section 7.01(c), or (y) upon the final payment or other liquidation
of the
last Mortgage Loan or REO Property in the Trust Fund. In the case of a
Trust
Fund Termination Event, the Trustee shall also give notice to the Master
Servicer, the Swap Counterparty, the Cap Counterparty and the Certificate
Registrar at the time notice is given to Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution Date upon which final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated Regular Interests of all amounts required to
be
distributed to Certificateholders pursuant to Section 5.02 will be made
upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution
Date is
not applicable, distribution being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein specified.
Upon
any such Trust Fund Termination Event, the duties of the Certificate Registrar
with respect to the Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall terminate and the Trustee shall terminate or request the
Master
Servicer to terminate, the Collection Account it maintains, the Certificate
Account and any other account or fund maintained with respect to the
Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
147
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates)
of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates
(other
than the Class LT-R Certificates) at the Corporate Trust Office, and (B)
that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender
of the
Certificates (other than the Class LT-R Certificates) at the office or
agency of
the Trustee therein specified. Upon any such purchase of the Lower Tier
REMIC 1
Uncertificated Regular Interests, the duties of the Certificate Registrar
with
respect to the Certificates other than the Class LT-R Certificate shall
terminate but the Trustee shall not terminate or request the Master Servicer
to
terminate, the Collection Account it maintains, the Certificate Account
and any
other account or fund maintained with respect to the Certificates, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment. For
all
Distribution Dates following the Distribution Date on which the Master
Servicer
purchases the Lower Tier REMIC 1 Uncertificated Regular Interests, all
amounts
that would be distributed on the Certificates (other than the Class LT-R
Certificate and exclusive of amounts payable from any fund held outside
of REMIC
1) absent such purchase shall be payable to the LTURI-holder.
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive
the final distribution with respect thereto. If within one year after the
second
notice any Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be
paid
out of the amounts distributable to such Holders. If within two years after
the
second notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall, subject to applicable state law relating to escheatment,
hold
all amounts distributable to such Holders for the benefit of such Holders.
No
interest shall accrue on any amount held by the Trustee and not distributed
to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests shall be reimbursed from proceeds received from such
termination or purchase.
148
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with
the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to purchase all of the Mortgage Loans or
Lower
Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b)
or
Section 7.01(c), respectively), and subsequently receives, an Opinion of
Counsel
(at the expense of such requesting party), addressed to the Trustee and
any NIMS
Insurer to the effect that the failure to comply with the requirements
of this
Section 7.03 will not result in an Adverse REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the
Lower
Tier REMIC 1 Uncertificated Regular Interests, upon notification by the
Master
Servicer, the Trustee, any NIMS Insurer or an Affiliate of the Seller that
it
intends to exercise its option to cause the termination of the Trust Fund
or
purchase the Lower Tier REMIC 1 Uncertificated Regular Interests, the Trustee
shall adopt a plan of complete liquidation on behalf of each REMIC (other
than
REMIC 1, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), meeting the requirements of a qualified liquidation
under
the REMIC Provisions;
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated
Regular
Interests pursuant to Section 7.02 shall be a sale for cash and shall occur
at
or after the time of adoption of such a plan of complete liquidation and
prior
to the time of making of the final payment on the Certificates (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Trustee shall make final distributions of principal
and
interest on such Certificates and shall pay, in the case of a Trust Fund
Termination Event, any Net Swap Payment then remaining unpaid and any Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date (in each case to the extent not paid on previous Swap Payment Dates)
in
accordance with Section 5.01 and Section 5.02. In the case of a Trust Fund
Termination Event, and, after payment of, or provision for any outstanding
expenses, the Trustee shall distribute or credit, or cause to be distributed
or
credited, to the Holders of the Residual Certificates all cash on hand
after
such final payment (other than cash retained to meet claims), and the Trust
Fund
(and each REMIC) shall terminate at that time; and
(iv) In
no
event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
149
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees
to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or any
Servicer.
(c) In
connection with the termination of the Trust Fund, or a Section 7.01(c)
Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all the requirements
of a
qualified liquidation under the REMIC Provisions have been met.
|
Section
7.04.
|
Optional
Repurchase Right.
|
The
NIMS
Insurer, if any, may repurchase any Distressed Mortgage Loan for a purchase
price equal to the outstanding principal balance of such Mortgage Loan,
plus
accrued interest thereon to the date of repurchase plus any unreimbursed
Advances, Servicing Advances or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the
Master
Servicer for deposit into the Collection Account. The NIMS Insurer shall
not use
any procedure in selecting Distressed Mortgage Loans to be repurchased
which
would be materially adverse to Certificateholders.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or
any of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto,
nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time
as
partners or members of an association, nor shall any Certificateholder
be under
any liability to any third person by reason of any action taken by the
parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder,
shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have
given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of Certificates of each Class affected thereby shall, with the
prior
written consent of any NIMS Insurer, have made written request upon the
Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it
may require against the cost, expenses and liabilities to be incurred therein
or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding and no direction inconsistent with such
written
request has been given the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended,
and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer and the Trustee, that no one or more
Holders
of Certificates shall have any right in any manner whatever by virtue or
by
availing of any provision of this Agreement to affect, disturb or prejudice
the
rights of the Holders of any other of such Certificates or the rights of
any
NIMS Insurer, or to obtain or seek to obtain priority over or preference
to any
other such Holder or any NIMS Insurer, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of
all
Certificateholders. For the protection and enforcement of the provisions
of this
Section, each and every Certificateholder, the NIMS Insurer and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
150
|
Section
8.02.
|
Access
to List of Holders.
|
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar
will
furnish or cause to be furnished to the Trustee and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by
the
Trustee or any NIMS Insurer in writing, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Certificateholders
of each
Class as of the most recent Record Date.
(b) If
any
NIMS Insurer or three or more Holders or Certificate Owners (hereinafter
referred to as “Applicants”) apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Trustee shall, within five Business Days after the receipt
of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held
by the Trustee or shall, as an alternative, send, at the Applicants’ expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
any
NIMS Insurer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, any NIMS Insurer, the Certificate Registrar
nor
the Trustee shall be held accountable by reason of the disclosure of any
such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and, where expressly required
herein,
to the Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an “Act” of
the Holders signing such instrument or instruments. Proof of execution
of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee
and the
Master Servicer, if made in the manner provided in this Section. Each of
the
Trustee and the Master Servicer shall promptly notify the others of receipt
of
any such instrument by it, and shall promptly forward a copy of such instrument
to the others.
151
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any
such instrument or writing, or the authority of the individual executing
the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated
Regular
Interests shall be overdue and notwithstanding any notation of ownership
or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and none of the Trustee, the Master Servicer,
the NIMS
Insurer, or the Depositor shall be affected by any notice to the
contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate
or Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee
or the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate or Lower Tier REMIC 1 Uncertificated Regular
Interest.
152
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER; CREDIT RISK
MANAGER
|
Section
9.01.
|
Duties
of the Master Servicer.
|
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Lower Tier REMIC 1 Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and
the
provisions of each Servicing Agreement. Notwithstanding anything in this
Agreement, any Servicing Agreement or any Credit Risk Management Agreement
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
any Credit Risk Management Agreement or to supervise, monitor or oversee
the
activities of any Servicer under its Credit Risk Management Agreement with
respect to any action taken or not taken by a Servicer at the direction
of the
Seller or pursuant to a recommendation of the Credit Risk Manager.
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer Errors and Omissions Insurance Policy,
affording coverage with respect to all directors, officers, employees and
other
Persons acting on such Master Servicer’s behalf, and covering errors and
omissions in the performance of the Master Servicer’s obligations hereunder. The
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent
with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and
any
NIMS Insurer upon request, with a copy of such policy and fidelity bond.
The
Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Servicer Fidelity Bond in accordance with
the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy
and bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and
to the
extent provided in the applicable Servicing Agreement, and (iii) furnish
copies
of such policies and of the certificates and notices referred to in clause
(ii)
to the Trustee upon request.
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer
any
material changes that may occur in the Master Servicer Fidelity Bond or
the
Master Servicer Errors and Omissions Insurance Policy and shall furnish
to the
Trustee and any NIMS Insurer, on request, certificates evidencing that
such bond
and insurance policy are in full force and effect. The Master Servicer
shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The
total
losses, regardless of whether claims are filed with the applicable insurer
or
surety, shall be disclosed in such reports together with the amount of
such
losses covered by insurance. If a bond or insurance claim report is filed
with
any of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee and any NIMS Insurer. Any
amounts
relating to the Mortgage Loans collected by the Master Servicer under any
such
bond or policy shall be promptly remitted by the Master Servicer to the
Trustee
for deposit into the Certificate Account. Any amounts relating to the Mortgage
Loans collected by the applicable Servicer under any such bond or policy
shall
be remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
153
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
For
each
year this Agreement is in effect, the Master Servicer shall submit to each
Rating Agency and the Depositor a copy of the annual audited financial
statements of its parent on or prior to March 31st of each year commencing
on
March 31, 2008. Such financial statements shall include comparative
balance sheets, income statements, statement of changes in shareholder's
equity,
statements of cash flows, a consolidating schedule showing consolidated
subsidiaries and any related notes required pursuant to generally accepted
accounting principles, certified by a nationally recognized firm of Independent
Accountants to the effect that such financial statements were examined
and
prepared in accordance with generally accepted accounting principles applied
on
a basis consistent with that of the preceding year.
|
Section
9.04.
|
Power
to Act; Procedures.
|
(a) The
Master Servicer shall master service the Mortgage Loans and shall have
full
power and authority, subject to the REMIC Provisions and the provisions
of
Article X hereof, and each Servicer shall have full power and authority
(to the
extent provided in the applicable Servicing Agreement) to do any and all
things
that it may deem necessary or desirable in connection with the servicing
and
administration of the Mortgage Loans, including but not limited to the
power and
authority (i) to execute and deliver, on behalf of the Certificateholders
and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions
of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan,
in each
case, in accordance with the provisions of this Agreement and the applicable
Servicing Agreement, as applicable; provided that the Master Servicer shall
not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders
in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee,
the
Certificateholders under this Agreement. The Master Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects
its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan and shall not make or knowingly permit
any
Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause an Adverse REMIC Event. Without limiting
the
generality of the foregoing, the Master Servicer in its own name or in
the name
of a Servicer, and each Servicer, to the extent such authority is delegated
to
such Servicer under the applicable Servicing Agreement, is hereby authorized
and
empowered by the Trustee when the Master Servicer or such Servicer, as
the case
may be, believes it appropriate in its best judgment and in accordance
with
Accepted Servicing Practices and the applicable Servicing Agreement, to
execute
and deliver, on behalf of itself and the Certificateholders, the Trustee
or any
of them, any and all instruments of satisfaction or cancellation, or of
partial
or full release or discharge and all other comparable instruments, with
respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The
Trustee
shall furnish to the Master Servicer, upon request, with any powers of
attorney
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver
such
other documents, as the Master Servicer may request, necessary or appropriate
to
enable the Master Servicer to master service the Mortgage Loans and carry
out
its duties hereunder and to allow each Servicer to service the Mortgage
Loans,
in each case in accordance with Accepted Servicing Practices (and the Trustee
shall have no liability for misuse of any such powers of attorney by the
Master
Servicer or any Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is
to be
taken prohibit such action if taken in the name of the Trustee or that
the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, then upon request of the
Trustee
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 6.09 hereof. In no event shall the Master
Servicer, without the Trustee’s written consent: (i) initiate any action, suit
or proceeding solely under the Trustee’s name without indicating the Master
Servicer in its applicable, representative capacity, so long as the
jurisdictional and procedural rules will allow for this insertion to occur,
(ii)
initiate any action, suit or proceeding not directly relating to the servicing
of a Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Transferor
for
breaches of representations and warranties) solely under the Trustee’s name,
(iii) engage counsel to represent the Trustee in any action, suit or proceeding
not directly relating to the servicing of a Mortgage Loan (including but
not
limited to actions, suits or proceedings against Certificateholders, or
against
the Depositor or the Transferor for breaches of representations and warranties),
or (iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to
cause,
and that actually causes, the Trustee to be registered to do business in
any
state. The Master Servicer shall indemnify the Trustee for any and all
costs,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse of such powers of attorney by the Master Servicer.
In the performance of its duties hereunder, the Master Servicer shall be
an
independent contractor and shall not, except in those instances where it
is
taking action in the name of the Trustee on behalf of the Trust Fund, be
deemed
to be the agent of the Trustee.
154
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving
due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master
Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and
(ii) extend the due dates for payments due on a Mortgage Note; provided,
however,
that the
maturity of any Mortgage Loan shall not be extended past the date on which
the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the
Master
Servicer shall make or cause such Servicer (if required by the applicable
Servicing Agreement) to make Advances on the related Mortgage Loan in accordance
with the provisions of Section 5.04 on the basis of the amortization schedule
of
such Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master
Servicer
shall not make or knowingly permit any modification, waiver or amendment
of any
material term of any Mortgage Loan, unless: (1) such Mortgage Loan is in
default
or default by the related Mortgagor is, in the reasonable judgment of the
Master
Servicer or the related Servicer, reasonably foreseeable, (2) in the case
of a
waiver of a Prepayment Premium, (a) such Mortgage Loan is in default or
default
by the related Mortgagor is, in the reasonable judgment of the Master Servicer
or the related Servicer, reasonably foreseeable and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (b) if the prepayment is not the
result
of a refinance by the Servicer or any of its affiliates and (i) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the related Servicer, reasonably foreseeable
and such waiver would maximize recovery of total proceeds taking into account
the value of such Prepayment Premium and the related Mortgage Loan or (ii)
the
collection of the Prepayment Premium would be in violation of applicable
law or
(iii) the collection of such Prepayment Premium would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and
having
jurisdiction over such matters and (3) the Master Servicer shall have provided
or caused to be provided to the Trustee an Opinion of Counsel addressed
to the
Trustee (which opinion shall, if provided by the Master Servicer, be an
expense
reimbursed from the Collection Account pursuant to Section 4.02(v)) to
the
effect that such modification, waiver or amendment would not result in
an
Adverse REMIC Event; provided, in no event shall an Opinion of Counsel
be
required for the waiver of a Prepayment Premium under clause (2)
above.
155
(c) As
an
alternative permitting a modification or effectuating a foreclosure or
other
conversion of the ownership of a Mortgaged Property, the Master Servicer
may, at
its option, purchase any Mortgage Loan that has become one hundred and
twenty
(120) days or more delinquent in payment (including, for the avoidance
of doubt,
any Mortgage Loan with respect to which the related borrower is in Bankruptcy);
provided,
however,
that
(i) the Master Servicer promptly notifies the related Servicer of its intention
to purchase any such delinquent Mortgage Loan prior to its purchase and
(ii)
that the Master Servicer shall exercise any such option to purchase a Mortgage
Loan within sixty (60) days after any such Mortgage Loan has become one
hundred
and twenty (120) days delinquent. The price at which the Master Servicer
shall
purchase any such delinquent Mortgage Loan shall equal the Purchase Price
and
such amount shall be deposited into the Collection Account on the date
of
purchase pursuant to Section 4.01(d)(viii). Upon receipt by the Trustee
of a
written certification from the Master Servicer that the Master Servicer
has
exercised such option and deposited the full amount of the Purchase Price
of the
related Mortgage Loan in the Collection Account and delivery of a Request
for
Release of Documents (on the form attached hereto as Exhibit C or in the
form
attached to the related Custodial Agreement), the applicable Custodian
shall
release the related Mortgage File to or upon the order of the Master Servicer,
and at the written request of the Master Servicer the Trustee shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as shall be necessary to vest title
to
such Mortgage Loan in the Master Servicer or its designee, which instruments
shall be prepared by the Master Servicer.
156
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
(a) Each
Servicing Agreement requires the applicable Servicer, respectively, to
service
the Mortgage Loans in accordance with the provisions thereof. References
in this
Agreement to actions taken or to be taken by the Master Servicer include
actions
taken or to be taken by a Servicer on behalf of the Master Servicer. Any
fees
and other amounts payable to a Servicer shall be deducted from amounts
remitted
to the Master Servicer by such Servicer (to the extent permitted by the
applicable Servicing Agreement) and shall not be an obligation of the Trust
Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the related Servicer is not required
to take
under the related Servicing Agreement and (ii) cause a Servicer to take
any
action or refrain from taking any action if the related Servicing Agreement
does
not require such Servicer to take such action or refrain from taking such
action; in both cases notwithstanding any provision of this Agreement that
requires the Master Servicer to take such action or cause such Servicer
to take
such action.
(c) The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of each Servicer under
the
related Servicing Agreement, and shall, in the event that a Servicer fails
to
perform its obligations in accordance therewith, terminate the rights and
obligations of such Servicer thereunder and either act as servicer of the
related Mortgage Loans or cause the other parties hereto to enter into
a
Servicing Agreement (and such parties hereby agree to execute and deliver
any
such successor Servicing Agreement), with a successor Servicer. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Servicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at
such
time as the Master Servicer, in its good faith business judgment, would
require
were it the owner of the related Mortgage Loans. The Master Servicer shall
pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor initially (i) from a general recovery resulting from such enforcement
only to the extent, if any, that such recovery exceeds all amounts due
in
respect of the related Mortgage Loans, (ii) from a specific recovery of
costs,
expenses or attorneys’ fees against the party against whom such enforcement is
directed, and then, (iii) to the extent that such amounts are insufficient
to
reimburse the Master Servicer for the costs of such enforcement, from the
Collection Account.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, filings
or
reports, in accordance with the terms hereof or as may be required by applicable
law or regulation.
157
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts
have been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not
required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer.
The
Master Servicer shall make (or cause to be made) to the extent provided
in the
applicable Servicing Agreement advances to the extent necessary in order
to
effect timely payment of taxes, water rates, assessments, standard hazard
insurance policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails,
to pay
such items), provided that it or the applicable Servicer has determined
that the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
(b) Costs
incurred by the Master Servicer or by any Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where
the terms
of the Mortgage Note so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master
Servicer
pursuant to Section 4.02.
|
Section
9.07.
|
Termination
of Servicing Agreements; Successor Servicers.
|
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of any
Servicer under the applicable Servicing Agreement in accordance with the
terms
and conditions of such Servicing Agreement and without any limitation by
virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by
a
successor Servicer to be appointed as provided in the applicable Servicing
Agreement.
The
parties acknowledge that notwithstanding the preceding sentence, there
may be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor Servicer. The Master Servicer shall be entitled
to be
reimbursed from each Servicer (or by the Trust Fund, if the Servicer is
unable
to fulfill its obligations hereunder) for all costs associated with the
transfer
of servicing from the predecessor servicer, including without limitation,
any
costs or expenses associated with the complete transfer of all servicing
data
and the completion, correction or manipulation of such servicing data,
as may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
158
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of a Servicer, if any, that it replaces.
The
Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor Servicer, the Trustee or the Master Servicer,
as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
(c) If
the
Master Servicer acts as a successor Servicer, it will have the same obligations
to make Advances as the Servicer under the related Servicing Agreement
and to
reimburse itself for unreimbursed Advances if required by the Servicing
Agreement but will have no obligation to make an Advance if it determines
in its
reasonable judgment that such Advance is non-recoverable. To the extent
that the
Master Servicer is unable to find a successor Servicer that is willing
to
service the Mortgage Loans for the Servicing Fee because of the obligation
of
the Servicer to make Advances regardless of whether such Advance is recoverable,
the applicable Servicing Agreement may be amended to provide that the successor
Servicer shall have no obligation to make an Advance if it determines in
its
reasonable judgment that such Advance is non-recoverable and provides an
Officer’s Certificate to such effect to the Master Servicer, the Trustee and the
NIMS Insurer.
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and
liable
to the Trustee, any NIMS Insurer and the Certificateholders in accordance
with
the provisions of this Agreement, to the extent of its obligations hereunder,
without diminution of such obligation or liability by virtue of such Servicing
Agreements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce
the
provisions of each Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into
any
agreement with any Servicer for indemnification of the Master Servicer
and
nothing contained in this Agreement shall be deemed to limit or modify
such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing
Agreement.
|
Section
9.09.
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
Any
Servicing Agreement that may be entered into and any other transactions
or
services relating to the Mortgage Loans involving any Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller and the Master Servicer, and the Trustee, any NIMS Insurer and
the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to such Servicer except as set forth
in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of any Servicer are set forth in their entirety in
such
Servicer’s related Servicing Agreement and such Servicer has no obligations
under and is not otherwise bound by the terms of this Agreement.
159
|
Section
9.10.
|
Assumption
of Servicing Agreement by Trustee.
|
(a) In
the
event the Master Servicer shall for any reason no longer be the Master
Servicer
(including by reason of any Event of Default under this Agreement), after
a
period not to exceed ninety days after the issuance of any notice pursuant
to
Section 6.14 or Section 9.28, as applicable, the Trustee shall thereupon
assume
all of the rights and obligations of such Master Servicer hereunder and
under
each Servicing Agreement entered into with respect to the Mortgage Loans.
The
Trustee, its designee or any successor master servicer appointed by the
Trustee
shall be deemed to have assumed all of the Master Servicer’s interest herein and
therein to the same extent as if such Servicing Agreement had been assigned
to
the assuming party, except that the Master Servicer shall not thereby be
relieved of any liability or obligations of the Master Servicer under such
Servicing Agreement accruing prior to its replacement as Master Servicer,
and
shall be liable to the Trustee and any NIMS Insurer, and hereby agrees
to
indemnify and hold harmless the Trustee and any NIMS Insurer from and against
all costs, damages, expenses and liabilities (including reasonable attorneys’
fees) incurred by the Trustee or any NIMS Insurer as a result of such liability
or obligations of the Master Servicer and in connection with the Trustee’s (or
other successor master servicer’s ) assumption (but not its performance, except
to the extent that costs or liability of the Trustee (or other successor
master
servicer’s ) are created or increased as a result of negligent or wrongful acts
or omissions of the Master Servicer prior to its replacement as Master
Servicer)
of the Master Servicer’s obligations, duties or responsibilities
thereunder.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
each Servicing Agreement to the assuming party.
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall
cause
the related Servicer to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance
with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
|
Section
9.12.
|
Release
of Mortgage Files.
|
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the
receipt
by the Master Servicer of a notification that payment in full has been
or will
be escrowed in a manner customary for such purposes, the Master Servicer
will,
or will cause the related Servicer to, promptly notify the Trustee (or
the
applicable Custodian) by a certification (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account maintained
by the Master Servicer pursuant to Section 4.01 have been or will be so
deposited) of a Servicing Officer and shall request (on the form attached
hereto
as Exhibit C or on the form attached to the Custodial Agreement) the Trustee
or
the applicable Custodian, to deliver to the applicable Servicer the related
Mortgage File. Upon receipt of such certification and request, the Trustee
or
the applicable Custodian (with the consent, and at the direction of the
Trustee), shall promptly release the related Mortgage File to the applicable
Servicer and the Trustee shall have no further responsibility with regard
to
such Mortgage File. Upon any such payment in full, the Master Servicer
is
authorized, and each Servicer, to the extent such authority is provided
for
under the applicable Servicing Agreement, is authorized, to give, as agent
for
the Trustee, as the mortgagee under the Mortgage that secured the Mortgage
Loan,
an instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument
of
satisfaction or assignment, as the case may be, shall be delivered to the
Person
or Persons entitled thereto against receipt therefor of such payment, it
being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
160
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable
Servicing
Agreement, the Trustee shall execute such documents as shall be prepared
and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the applicable Custodian, shall, upon
request of the Master Servicer, or of a Servicer, and delivery to the Trustee
or
the applicable Custodian, of a request for release of documents and a receipt
signed by a Servicing Officer substantially in the form of Exhibit C, release
the related Mortgage File held in its possession or control to the Master
Servicer (or the applicable Servicer). Such receipt shall obligate the
Master
Servicer or Servicer to return the Mortgage File to the Trustee or the
applicable Custodian, as applicable, when the need therefor by the Master
Servicer or Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing
Officer
similar to that hereinabove specified, the receipt shall be released by
the
Trustee or the applicable Custodian, as applicable, to the Master Servicer
(or
the applicable Servicer).
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held
for Trustee.
|
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee such documents and instruments coming into the possession of
the
Master Servicer or such Servicer from time to time as are required by the
terms
hereof or of the applicable Servicing Agreement to be delivered to the
Trustee
or the applicable Custodian. Any funds received by the Master Servicer
or by a
Servicer in respect of any Mortgage Loan or which otherwise are collected
by the
Master Servicer or a Servicer as Liquidation Proceeds or Insurance Proceeds
in
respect of any Mortgage Loan shall be held for the benefit of the Trustee
and
the Certificateholders subject to the Master Servicer’s right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts
provided in this Agreement and to the right of each Servicer to retain
its
Servicing Fee and other amounts as provided in the related Servicing Agreement.
The Master Servicer shall, and shall (to the extent provided in the applicable
Servicing Agreement) cause each Servicer to, provide access to information
and
documentation regarding the Mortgage Loans to the Trustee, any NIMS Insurer,
their respective agents and accountants at any time upon reasonable request
and
during normal business hours, and to Certificateholders that are savings
and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such
Office
and Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office
of
Thrift Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it.
In
fulfilling such a request the Master Servicer shall not be responsible
for
determining the sufficiency of such information.
161
(b) All
Mortgage Files and funds collected or held by, or under the control of,
the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by any
Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be
and
remain the sole and exclusive property of the Trustee; provided,
however,
that the
Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement and shall be authorized to remit such funds to the
Trustee
in accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter
held
by, or under the control of, a Servicer or the Master Servicer that are
collected by any Servicer or the Master Servicer in connection with the
Mortgage
Loans, whether as scheduled installments of principal and interest or as
full or
partial prepayments of principal or interest or as Liquidation Proceeds
or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a
Servicer
is entitled under the applicable Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees
that so
long as the Mortgage Loans are assigned to and held by the Trustee or the
applicable Custodian, all documents or instruments constituting part of
the
Mortgage Files, and such funds relating to the Mortgage Loans which come
into
the possession or custody of, or which are subject to the control of, the
Master
Servicer or any Servicer shall be held by the Master Servicer or such Servicer
for and on behalf of the Trustee as the Trustee’s agent and bailee for purposes
of perfecting the Trustee’s security interest therein as provided by the
applicable Uniform Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are
deposited
in any Custodial Account, Escrow Account or the Collection Account, or
any funds
that otherwise are or may become due or payable to the Trustee, to any
claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right
of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
162
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer and the Trustee, for the benefit of the Certificateholders, as
of the
Closing Date that:
(i) it
is
validly existing and in good standing under the laws of the state of its
incorporation, and as Master Servicer has full power and authority to transact
any and all business contemplated by this Agreement and to execute, deliver
and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s certificate of formation or limited liability company
agreement, (B) violate any law or regulation or any administrative decree
or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or
result in the breach of, any material contract, agreement or other instrument
to
which the Master Servicer is a party or by which it is bound or to which
any of
its assets are subject, which violation, default or breach would materially
and
adversely affect the Master Servicer’s ability to perform its obligations under
this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any certificate of formation or limited liability company agreement
provision, or any other company restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely
affect
its ability as Master Servicer to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under
this Agreement;
163
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which
is the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx-
or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or
the
consummation of the transactions contemplated by this Agreement, except
for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02 each of which is in full
force and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Documents relating to the Master Servicer does not include
an
untrue statement of a material fact and does not omit to state a material
fact,
with respect to the statements made, necessary in order to make the statements
in light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth
in this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor, the Trustee and any NIMS
Insurer
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses arising
out of or related to any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer’s
representations and warranties contained in Section 9.14(a). It is understood
and agreed that the enforcement of the obligation of the Master Servicer
set
forth in this Section to indemnify the Depositor, the Trustee and any NIMS
Insurer as provided in this Section constitutes the sole remedy (other
than as
set forth in Section 6.14) of the Depositor, the Trustee and any NIMS Insurer,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as
Master
Servicer hereunder, and any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the
breach
of any representations and warranties made in this Section shall accrue
upon
discovery of such breach by any of the Depositor, the Master Servicer,
the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties.
164
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution
and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon,
or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood
and
agreed that the enforcement of the obligation of the Depositor set forth
in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by
the
Depositor of the representations and warranties in Sections 2.03(a)(i)
through
(vi) hereof.
(d) Any
cause
of action against the Master Servicer relating to or arising out of the
breach
of any representations and warranties made in this Section shall accrue
upon
discovery of such breach by either the Depositor, the Master Servicer,
the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties. Notwithstanding anything in this Agreement to the contrary,
the
Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to,
lost
profits).
|
Section
9.15.
|
Opinion.
|
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee and any NIMS Insurer one or more Opinions
of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the Depositor and Xxxxxx Brothers Inc., as to the due authorization,
execution and delivery of this Agreement by the Master Servicer and the
enforceability thereof.
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and
casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
It is understood and agreed that such insurance shall be with insurers
meeting
the eligibility requirements set forth in the applicable Servicing Agreement
and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or any Servicing Agreement (other than amounts to be applied to the restoration
or repair of the property subject to the related Mortgage or released to
the
Mortgagor in accordance with the applicable Servicing Agreement) shall
be
deposited into the Collection Account, subject to withdrawal pursuant to
Section
4.02. Any cost incurred by the Master Servicer or any Servicer in maintaining
any such insurance if the Mortgagor defaults in its obligation to do so
shall be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02.
165
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee
and the Certificateholders all claims under the Insurance Policies with
respect
to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed
to the
Master Servicer (or disbursed to a Servicer and remitted to the Master
Servicer)
in respect of such policies or bonds shall be promptly deposited in the
Collection Account or the Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of
the
related Mortgaged Property as a condition requisite to the presentation
of
claims on the related Mortgage Loan to the insurer under any applicable
Insurance Policy need not be so deposited (or remitted).
|
Section
9.18.
|
Reserved
|
|
Section
9.19.
|
Custodian
To Retain Possession of Certain Documents.
|
Until
all
amounts distributable in respect of the Certificates have been distributed
in
full and the Master Servicer otherwise has fulfilled its obligations under
this
Agreement, the Trustee (or the Custodian) shall retain possession and custody
of
each Mortgage File in accordance with and subject to the terms and conditions
of
this Agreement. The Master Servicer shall promptly deliver or cause each
Servicer to deliver to the Trustee (or the Custodian) such documents or
instruments that constitute portions of the Mortgage File that come into
the
possession of the Master Servicer or any Servicer from time to
time.
|
Section
9.20.
|
[Reserved]
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted
by
Section 4.02. Servicing compensation in the form of assumption fees, if
any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the
Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to
direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by
withdrawal from the Certificate Account to the extent that payments have
been
received with respect to the applicable Mortgage Loan. The Master Servicer
shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as
provided
in this Agreement. Pursuant to Section 4.01(e), all income and gain realized
from any investment of funds in the Collection Account shall be for the
benefit
of the Master Servicer as additional compensation. The provisions of this
Section 9.21 are subject to the provisions of Section 6.14.
166
|
Section
9.22.
|
REO
Property.
|
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect
of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable
Servicer,
to the extent provided in the applicable Servicing Agreement any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect
and
conserve, such REO Property in the manner and to such extent required by
the
applicable Servicing Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the
operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and each Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection
with the
final disposition of such REO Property; provided,
that
(without
limitation of any other right of reimbursement that the Master Servicer
or any
Servicer shall have hereunder) any such unreimbursed Advances as well as
any
unpaid Net Master Servicing Fees or Servicing Fees may be reimbursed or
paid, as
the case may be, prior to final disposition, out of any net rental income
or
other net amounts derived from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net
of any
payment to the Master Servicer and the applicable Servicer as provided
above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer
in
immediately available funds on the next succeeding Master Servicer Remittance
Date to the Trustee for deposit into the Certificate Account.
|
Section
9.23.
|
Notices
to the Depositor and the Trustee
|
(a) The
Master Servicer shall promptly notify the Trustee, the Sponsor and the
Depositor
(i) of any legal proceedings pending against the Master Servicer of the
type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Master
Servicer shall become (but only to the extent not previously disclosed
to the
Master Servicer and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit V to this Agreement. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit V hereto
to the
Master Servicer.
167
(b) Not
later
than three Business Days prior to the Distribution Date of each month,
the
Master Servicer shall provide to the Trustee, the Sponsor and the Depositor
notice of the occurrence of any material modifications, extensions or waivers
of
terms, fees, penalties or payments relating to the Mortgage Loans during
the
related Collection Period or that have cumulatively become material over
time
(Item 1121(a)(11) of Regulation AB) along with all information, data, and
materials related thereto as may be required to be included in the related
Distribution Report on Form 10-D. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section
9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or
timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
|
Section
9.24.
|
Reports
to the Trustee.
|
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee a statement, deemed to have been certified
by a
Servicing Officer, setting forth the status of the Collection Account maintained
by the Master Servicer as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be
made by
the Master Servicer have been made (or if any required distribution has
not been
made by the Master Servicer, specifying the nature and status thereof)
and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, any NIMS Insurer
and any Certificateholders (or by the Trustee at the Master Servicer’s expense
if the Master Servicer shall fail to provide such copies to the
Certificateholders (unless (i) the Master Servicer shall have failed to
provide
the Trustee with such statement or (ii) the Trustee shall be unaware of
the
Master Servicer’s failure to provide such statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent
that such
information has been provided to the Master Servicer by the Servicers or
by the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on information supplied to the Master Servicer
by the
Servicers without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
168
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports..
|
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee) and the Trustee,
each at
its own expense, shall furnish, and each such party shall cause any Servicing
Function Participant engaged by it to furnish, each at its own expense,
to the
Sponsor, the Depositor, the Master Servicer and the Trustee, a report on
an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance
with
the Relevant Servicing Criteria, (B) a statement that such party used the
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(C) such party’s assessment of compliance with the Relevant Servicing Criteria
as of and for the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 6.20(e), including, if there has been any material
instance
of noncompliance with the Relevant Servicing Criteria, a discussion of
each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the Relevant Servicing Criteria as of and
for such
period. In the event that the Trustee and the Paying Agent are the same
party,
the Relevant Servicing Criteria of the Paying Agent shall be included in
the
Trustee’s report.
(ii) When
the
Master Servicer, the Credit Risk Manager, the Paying Agent (if other than
the
Trustee) and the Trustee (or any Servicing Function Participant engaged
by it)
submit their assessments to the Sponsor, the Depositor, the Master Servicer
and
the Trustee, such parties will also at such time include the assessment
(and
attestation pursuant to subsection (b) of this Section 9.25) of each Servicing
Function Participant engaged by it and shall indicate to the Trustee what
Relevant Servicing Criteria will be addressed in any such reports prepared
by
any such Servicing Function Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Trustee shall
confirm that the assessments, taken as a whole, address all applicable
Servicing
Criteria and taken individually address the Relevant Servicing Criteria
(and
disclose the inapplicability of the Servicing Criteria not determined to
be
Relevant Criteria) for each party as set forth on Exhibit S and on any
similar
exhibit set forth in each Servicing Agreement in respect of each Servicer,
and
the Custodial Agreement in respect of the Custodians, and shall notify
the
Depositor of any exceptions. By way of clarification and for the avoidance
of
doubt, it is acknowledged that the Trustee shall rely exclusively on Exhibit
S
and on any similar exhibit set forth in each Servicing Agreement and each
Custodial Agreement to determine such applicable Servicing Criteria and
Relevant
Servicing Criteria, as the case may be, and shall not otherwise be reporting
on
the content of or sufficiency of such assessments.
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee) and the Trustee,
each at
its own expense, shall cause, and each such party shall cause any Servicing
Function Participant engaged by it to cause, each at its own expense, a
registered public accounting firm (which may also render other services
to the
Master Servicer, the Credit Risk Manager, the Paying Agent and the Trustee,
as
the case may be) that is a member of the American Institute of Certified
Public
Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer and the Trustee, to the effect that (A) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (B) on the basis of an examination conducted by
such
firm in accordance with standards for attestation engagements issued or
adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material
respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall
state
in such report why it was unable to express such an opinion. Such report
must be
available for general use and not contain restricted use language. In the
event
that the Trustee and the Paying Agent are the same party, the attestation
report
caused to be furnished by the Trustee shall also address the Relevant Servicing
Criteria of the Paying Agent.
169
(ii) Promptly
after receipt of such report from the Master Servicer, the Credit Risk
Manager,
the Paying Agent (if other than the Trustee), the Trustee or any Servicing
Function Participant engaged by such parties, the Trustee shall confirm
that
each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and
notify
the Depositor of any exceptions.
(c) The
Master Servicer’s, Trustee’s and Paying Agent’s obligation to provide
assessments of compliance and attestations under this Section 9.25 shall
terminate upon the filing of a Form 15 suspension notice on behalf of the
Trust
Fund.
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria.
|
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2008,
an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer,
in all
material respects throughout such year or portion thereof, or, if there
has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status
thereof.
170
|
Section
9.27.
|
Merger
or Consolidation.
|
Any
Person into which the Master Servicer may be merged or consolidated, or
any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper
or any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person
that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and shall have a net worth of not less than
$15,000,000.
|
Section
9.28.
|
Resignation
of Master Servicer.
|
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer
shall
not resign from the obligations and duties hereby imposed on it unless
it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable
law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall
become
effective until the Trustee shall have assumed, or a successor master servicer
acceptable to any NIMS Insurer and the Trustee shall have been appointed
by the
Trustee and until such successor shall have assumed, the Master Servicer’s
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor
to
the Trustee and any NIMS Insurer.
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
(a)
Except as expressly provided herein, the Master Servicer shall not assign
or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any
Subservicer, Subcontractor or other Person to perform any of the duties,
covenants or obligations to be performed by the Master Servicer hereunder;
provided,
however,
that the
Master Servicer shall have the right without the prior written consent
of the
Trustee, any NIMS Insurer or the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall
any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice
of such
permitted assignment, and the name of any such affiliated Subcontractor
or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee and any NIMS Insurer. If, pursuant to any provision hereof, the
duties
of the Master Servicer are transferred to a successor master servicer,
the
entire amount of the Master Servicing Fees and other compensation payable
to the
Master Servicer pursuant hereto, including amounts payable to or permitted
to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
171
(b)
Notwithstanding the foregoing, for so long as reports are required to be
filed
with the Commission under the Exchange Act with respect to the Trust, the
Master
Servicer shall not utilize any Subcontractor for the performance of its
duties
hereunder if such Subcontractor would be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB without (a) giving
notice to the Trustee and the Depositor and (b) requiring any such Subcontractor
to provide to the Master Servicer an attestation report as provided for
in
Section 9.25(b) and an assessment report as provided in Section 9.25(a),
which
reports the Master Servicer shall include in its attestation and assessment
reports.
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
(a) The
Master Servicer undertakes to perform such duties and only such duties
as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure
to act or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not
be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished
to the
Master Servicer and conforming to the requirements of this
Agreement.
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability
to the
Trustee or the Certificateholders for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise
be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer and any director,
officer,
employee or agent of any of them shall be entitled to indemnification by
the
Trust Fund and will be held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement
or the
Certificates other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of his or its obligations
and
duties hereunder. The Master Servicer, the Seller and the Depositor and
any
director, officer, employee or agent of any of them may rely in good faith
on
any document of any kind prima facie properly executed and submitted by
any
Person respecting any matters arising hereunder. The Master Servicer, the
Seller
and the Depositor shall be under no obligation to appear in, prosecute
or defend
any legal action that is not incidental to its duties to master service
the
Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that the
Master Servicer may in its sole discretion undertake any such action that
it may
deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities
of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
172
The
Master Servicer shall not be liable for any acts or omissions of any Servicer.
In particular, the Master Servicer shall not be liable for any course of
action
taken by the Servicers with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant
to any
Credit Risk Management Agreement. Further, the Master Servicer shall not
be
liable for performance by any Servicer under any Credit Risk Management
Agreement.
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
(including in its capacity as Certificate Registrar and the Paying Agent)
and
any NIMS Insurer and their respective officers, directors, agents and
affiliates, and hold each of them harmless against any and all claims,
losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or any NIMS Insurer may sustain arising out of
or based
upon (a) any material breach by the Master Servicer of any if its obligations
hereunder, including particularly its obligations to provide any reports
under
Section 9.25(a), Section 9.25(b) or Section 9.26 or any information, data
or
materials required to be included in any Exchange Act report, (b) any material
misstatement or omission in any information, data or materials provided
by the
Master Servicer, or (c) the negligence, bad faith or willful misconduct
of the
Master Servicer in connection with its performance hereunder. The Depositor,
the
Sponsor, the Trustee and any NIMS Insurer shall immediately notify the
Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor, the Trustee or
any NIMS
Insurer to indemnification hereunder, whereupon the Master Servicer shall
assume
the defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such claim.
This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage Loans.
|
If
permitted under the terms of the applicable Servicing Agreement, the Seller
may
appoint, pursuant to the terms of the applicable Servicing Agreement and
with
the written consent of the Depositor, the Master Servicer, the Trustee
and any
NIMS Insurer, a special servicer to special service any Distressed Mortgage
Loans. Any applicable termination fee related to the termination of the
related
Servicer and the appointment of any special servicer shall be paid by the
Seller
from its own funds, without right of reimbursement from the Trust Fund.
Any fees
paid to any such special servicer shall not exceed the Servicing Fee
Rate.
173
|
Section
9.33.
|
Alternative
Index.
|
In
the
event that the Index for any Mortgage Loan, as specified in the related
Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes
a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not
make
provision for the selection of an alternative index in such event, the
Master
Servicer shall, subject to applicable law, select an alternative index
based on
information comparable to that used in connection with the original Index
and,
in either case, such alternative index shall thereafter be the Index for
such
Mortgage Loan.
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint OfficeTiger Global Real Estate Services Inc. (OfficeTiger) as Credit
Risk Manager. For and on behalf of the Depositor, the Credit Risk Manager
will
provide reports and recommendations concerning certain delinquent and defaulted
Mortgage Loans, and as to the collection of any Prepayment Premiums with
respect
to the Mortgage Loans. Such reports and recommendations will be based upon
information provided pursuant to Credit Risk Management Agreements to the
Credit
Risk Manager by the Servicers. The Credit Risk Manager shall look solely
to the
Servicers and/or the Master Servicer for all information and data (including
loss and delinquency information and data) and loan level information and
data
relating to the servicing of the Mortgage Loans and the Trustee shall not
have
any obligation to provide any such information to the Credit Risk Manager
and
shall not otherwise have any responsibility under the Credit Risk Management
Agreements.
(b) On
or
about the 15th
calendar
day of each month,
commencing on or about April 15, 2007,
the
Credit Risk Manager shall have prepared and shall make available to any
NIMS
Insurer, the Trustee, the Swap Counterparty and each Certificateholder,
the
following reports (each such report to be in the form provided on Exhibit
R
hereto and to be made in a format compatible with XXXXX filing
requirements):
(i) Executive
Summary:
The
Executive Summary will consist of a brief high level summary of certain
key
performance metrics as well as a narrative summary of loans identified
and
reviewed for follow-up actions by the Servicers.
(ii) General
Pool Characteristics:
This
report will contain a listing of various characteristics of the mortgage
loan
pool (including history and stratification) such as documentation levels,
occupancy status, weighted aging, CLTV, NOO rate, junior lien percentage,
etc.
(iii) Performance
Report:
This
report will graphically summarize the delinquency rates as well as the
loss
mitigation, foreclosure, REO, CPR and loss severity and related summary
information.
(iv) Prepayment
Analysis:
This
report will consist of a compilation and summary of various loan characteristics
for Mortgage Loans that have prepaid, along with prepayment premium
analytics.
174
(v) Servicer
Remittance Report:
This
report will consist of an analysis of any discrepancy between the monthly
servicer remittance files and the final monthly trust report including,
without
limitation, the collection of prepayment premiums.
(vi) MortgageRamp
Loan Review Report:
This
report will consist of a narrative summary with respect to the individual
loans
that have been flagged for manual review and follow-up consultation with
the
Servicer. This report may also include narrative summaries of the recommendation
of the Credit Risk Manager.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, any NIMS Insurer and the Rating Agencies
via
the Credit Risk Manager’s internet website. The Credit Risk Manager’s internet
website shall initially be located at xxxxx://xxxxx.xxxxxxxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “SASCO 2007-BC2”. The Trustee shall not have
any obligation to review such reports or otherwise monitor or supervise
the
activities of the Credit Risk Manager.
(c) The
Credit Risk Manager shall reasonably cooperate with the Depositor and the
Trustee in connection with the Trust Fund’s satisfying the reporting
requirements under the Exchange Act with respect to reports prepared by
the
Credit Risk Manager.
(d) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Trustee, the Master Servicer and the
Depositor
and (b) requiring any such Subcontractor to provide to the Credit Risk
Manager
an assessment report as provided for in Section 9.25(a) above and an attestation
report as provided in Section 9.25(b) above, which reports the Credit Risk
Manager shall include in its assessment and attestation reports.
(e) By
March
15 of each year (or if such day is not a Business Day, the immediately
preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer and
the
Trustee and for the benefit of the Person(s) signing the Form 10-K
Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15
of such
year only to the extent that the Depositor delivers a draft (without exhibits)
of the applicable Annual Report on Form 10-K to the Credit Risk Manager
by the
fifth Business Day in March of such year and (ii) in the event that the
Depositor delivers the draft Form 10-K referred to in clause (i) after
the fifth
Business Day in March of such year, the Credit Risk Manager shall deliver
the
Credit Risk Manager Certification as soon as practicable but no later than
five
calendar days of delivery to the Credit Risk Manager of such draft Form
10-K.
(f) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit
Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor and the Trustee, in writing.
175
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit
Risk
Manager, nor any of the directors, officers, employees or agents of the
Credit
Risk Manager, shall be under any liability to the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by Servicers under the Credit Risk Management
Agreements or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may
rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may
rely
in good faith upon the accuracy of information furnished by the Servicers
pursuant to the Credit Risk Management Agreements in the performance of
its
duties thereunder and hereunder.
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer
and
the Trustee, and each of their respective directors, officers, employees
and
agents and the Trust Fund and hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon the engagement of any
Subcontractor in violation of Section 9.34(e) or any failure by the Credit
Risk
Manager to deliver any information, report, certification, accountants’ letter
or other material when and as required under this Agreement, including
any
report under Sections 9.25(a) or (b).
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the exercise
of its or their sole discretion, at any time, without cause, upon ten (10)
days
prior written notice. The Certificateholders shall provide such written
notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon
receipt
of such notice.
ARTICLE
X
REMIC
ADMINISTRATION
|
Section
10.01.
|
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable
year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall
be as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of any expense paid by the Trust to the extent that
(i)
such expense was not taken into account in computing the Net Mortgage Rate
of
any Mortgage Loan, (ii) such expense does not constitute an “unanticipated
expense” of a REMIC within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) and (iii) the amount of such expense was not taken into
account in computing the interest rate of a more junior Class of regular
interests.
176
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity
date for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Trustee shall represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The Trustee shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited
to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i)
such
expenses are ordinary or routine expenses, including expenses of a routine
audit
but not expenses of litigation (except as described in (ii)); or (ii) such
expenses or liabilities (including taxes and penalties) are attributable
to the
negligence or willful misconduct of the Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer). The Trustee shall
be
entitled to reimbursement of expenses to the extent provided in clause
(i) above
from the Certificate Account, provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and other reports as required
by
Section 6.20 and this Section.
(d) The
Trustee shall prepare, sign and file, all of each REMIC’s federal and
appropriate state tax and information returns as such REMIC’s direct
representative. The expenses of preparing and filing such returns shall
be borne
by the Trustee.
(e) The
Trustee or its designee shall perform on behalf of each REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions, or other compliance guidance issued by the
Internal
Revenue Service or any state or local taxing authority. Among its other
duties,
if required by the Code, the REMIC Provisions, or other such guidance,
the
Trustee shall provide (i) to the Treasury or other governmental authority
such
information as is necessary for the application of any tax relating to
the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated
in
Section 860E(e)(3) of the Code and (ii) to the Trustee such information
as is
necessary for the Trustee to provide to the Certificateholders such information
or reports as are required by the Code or REMIC Provisions.
The
Trustee shall be entitled to receive reasonable compensation from the Trust
for
the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year.
177
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take
any
action or cause any REMIC to take any action necessary to create or maintain
the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each
other as necessary to create or maintain such status. Neither the Trustee,
the
Master Servicer nor the Holder of any Residual Certificate shall knowingly
take
any action, cause any REMIC to take any action or fail to take (or fail
to cause
to be taken) any action that, under the REMIC Provisions, if taken or not
taken,
as the case may be, could result in an Adverse REMIC Event unless the Trustee,
any NIMS Insurer and the Master Servicer have received an Opinion of Counsel
addressed to the Trustee (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not result in an
Adverse
REMIC Event. In addition, prior to taking any action with respect to any
REMIC
or the assets therein, or causing any REMIC to take any action, which is
not
expressly permitted under the terms of this Agreement, any Holder of a
Residual
Certificate will consult with the Trustee, the Master Servicer, any NIMS
Insurer
or their respective designees, in writing, with respect to whether such
action
could cause an Adverse REMIC Event to occur with respect to any REMIC,
and no
such Person shall take any such action or cause any REMIC to take any such
action as to which the Trustee, the Master Servicer or any NIMS Insurer
has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the
extent
that such taxes are not paid by a Residual Certificateholder, the Trustee
shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC
or, if
no such amounts are available, out of other amounts held in the Certificate
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by
which
any REMIC will receive a fee or other compensation for services.
(k) On
or
before October 15 of each calendar year beginning in 2008, the Trustee
shall
deliver to any NIMS Insurer an Officer’s Certificate stating, without regard to
any actions taken by any party other than the Trustee, the Trustee’s compliance
with provisions of this Section 10.01. In
addition, upon the request of any Rating Agency, the Trustee shall deliver
to
such Rating Agency an Officer’s Certificate stating, without regard to any
actions taken by any party other than the Trustee, the Trustee’s compliance with
the provisions of this Section 10.01 applicable to it.
(l) The
Trustee shall treat each of the Basis Risk Reserve Fund, the Supplemental
Interest Trust and the Final Maturity Reserve Trust as an outside reserve
fund
within the meaning of Treasury Regulation Section 1.860G-2(h) that is owned
by
the Holders of the Class X Certificates and that is not an asset of any
REMIC
and all amounts deposited into the Basis Risk Reserve Fund, the Supplemental
Interest Trust or the Final Maturity Reserve Trust shall be treated as
amounts
distributed to the Class X Certificateholders.
178
(m) For
federal income tax purposes, upon any sale of the property held by the
Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the
Master
Servicer shall not be treated as a portion of the purchase price paid for
such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in
the
Class X Certificates immediately before the purchase of the property held
by the
Trust Fund.
(n) The
Trustee shall treat the beneficial owners of Certificates (other than the
Class
P, Class X, Class LT-R and Class R Certificates) as having entered into
a
notional principal contract with respect to the beneficial owners of the
Class X
Certificates. Pursuant to each such notional principal contract, all beneficial
owners of LIBOR Certificates shall be treated as having agreed to pay,
on each
Distribution Date, to the beneficial owners of the Class X Certificates
an
aggregate amount equal to the excess, if any, of (i) the amount payable
on such
Distribution Date on the interest in the Upper Tier REMIC corresponding
to such
Class of Certificates over
(ii)
the
amount payable on such Class of Certificates on such Distribution Date
(such
excess, a “Class I Shortfall”). A Class I Shortfall payable from interest
collections shall be allocated to each Class of Certificates to the extent
that
interest accrued on such Class for the related Accrual Period at the Certificate
Interest Rate for a Class, computed by substituting “REMIC 3 Net Funds Cap” for
the applicable “Net Funds Cap” in the definition thereof, exceeds the amount of
interest accrued for the related Accrual Period based on the applicable
Net
Funds Cap, and a Class I Shortfall payable from principal collections shall
be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant
to such
notional principal contract, the beneficial owner of the Class X Certificates
shall be treated as having agreed to pay Basis Risk Shortfalls and Unpaid
Basis
Risk Shortfalls to the Owners of the LIBOR Certificates in accordance with
the
terms of this Agreement. Any payments to the Certificates in light of the
foregoing shall not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860G(a)(1). However, any payment from
the
Certificates of a Class I Shortfall shall be treated for tax purposes as
having
been received by the beneficial owners of such Certificates in respect
of their
Interests in the Upper Tier REMIC and as having been paid by such beneficial
owners to the Supplemental Interest Trust pursuant to the notional principal
contract. Thus,
each Certificate (other than a Class P, Class R and Class LT-R Certificates)
shall be treated as representing not only ownership of regular interests
in the
Upper Tier REMIC, but also ownership of an interest in (and obligations
with
respect to) a notional principal contract. For tax purposes, the notional
principal contract shall be deemed to have a value in favor of the Certificates
entitled to receive Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
of
$32,096.29 as of the Closing Date.
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Trustee shall account for all distributions on the Certificates as
set forth
in this Section 10.01. In no event shall any payments of Basis Risk Shortfalls
or Unpaid Basis Risk Shortfalls provided for in this Section 10.01 be treated
as
payments with respect to a “regular interest” in a REMIC within the meaning of
Code Section 860G(a)(1).
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose
of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire
any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of
Counsel
addressed to the Trustee (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) result in an Adverse REMIC Event, (b) affect
the
distribution of interest or principal on the Certificates or (c) result
in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement).
179
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee of its duties and obligations set forth herein, the Trustee shall
indemnify any NIMS Insurer, the Holder of the related Residual Certificate
or
the Trust Fund, as applicable, against any and all losses, claims, damages,
liabilities or expenses (“Losses”) resulting from such negligence; provided,
however,
that the
Trustee shall not be liable for any such Losses attributable to the action
or
inaction of the Master Servicer, the Depositor, the Class X Certificateholders
or the Holder of such Residual Certificate, as applicable, or for any such
Losses resulting from misinformation provided by the Holder of such Residual
Certificate on which the Trustee has relied. The foregoing shall not be
deemed
to limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee have any liability (1)
for any
action or omission that is taken in accordance with and in compliance with
the
express terms of, or which is expressly permitted by the terms of, this
Agreement or any Servicing Agreement, (2) for any Losses other than arising
out
of a negligent performance by the Trustee of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on
the
Certificates); provided,
however,
that
this sentence shall not apply in connection with any failure by the Trustee
to
comply with the provisions of Subsections 6.01(l) hereof and Subsections
9.25(a)
or (b) hereof. In addition, the Trustee shall not have any liability for
the
actions or failure to act of any other party hereto.
|
Section
10.04.
|
REO
Property.
|
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent,
lease,
or otherwise earn income on behalf of any REMIC with respect to any REO
Property
which might cause an Adverse REMIC Event unless the Master Servicer has
advised,
or has caused the applicable Servicer to advise, the Trustee and any NIMS
Insurer in writing to the effect that, under the REMIC Provisions, such
action
would not result in an Adverse REMIC Event.
(b) The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
its Servicing Agreement) to make reasonable efforts to sell any REO Property
for
its fair market value. In any event, however, the Master Servicer shall,
or
shall cause the applicable Servicer (to the extent provided in its Servicing
Agreement) to, dispose of any REO Property within three years of its acquisition
by the Trust Fund unless the Master Servicer has received a grant of extension
from the Internal Revenue Service to the effect that, under the REMIC
Provisions, the REMIC may hold REO Property for a longer period without
causing
an Adverse REMIC Event. If the Master Servicer has received such an extension,
then the Trustee, or the Master Servicer, acting on its behalf hereunder,
shall,
or shall cause the applicable Servicer to, continue to attempt to sell
the REO
Property for its fair market value for such period longer than three years
as
such extension permits (the “Extended Period”). If the Trustee has not received
such an extension and the Master Servicer or the applicable Servicer, acting
on
behalf of the Trustee hereunder, is unable to sell the REO Property within
33
months after its acquisition by the Trust Fund or if the Master Servicer
has
received such an extension, and the Master Servicer or the applicable Servicer
is unable to sell the REO Property within the period ending three months
before
the close of the Extended Period, the Master Servicer shall cause the applicable
Servicer, before the end of the three year period or the Extended Period,
as
applicable, to (i) purchase such REO Property at a price equal to the REO
Property’s fair market value or (ii) auction the REO Property to the highest
bidder (which may be the applicable Servicer) in an auction reasonably
designed
to produce a fair price prior to the expiration of the three-year period
or the
Extended Period, as the case may be.
180
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
This
Agreement shall be binding upon and inure to the benefit of the parties
hereto
and their respective successors and permitted assigns.
|
Section
11.02.
|
Entire
Agreement.
|
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions,
express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
|
Section
11.03.
|
Amendment.
|
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer and the Trustee, with
the
consent of any NIMS Insurer, but without the consent of the Credit Risk
Manager
or the Swap Counterparty (except to the extent that the rights or obligations
of
(1) the Credit Risk Manager or the Swap Counterparty hereunder or (2) the
Swap
Counterparty under the Swap Agreement are affected thereby, and except
to the
extent the ability of the Trustee on behalf of the Supplemental Interest
Trust
and the Trust Fund to perform fully and timely its obligations under the
Swap
Agreement is adversely affected, in which case prior written consent of
the Swap
Counterparty is required) and without notice to or the consent of any of
the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein
to
conform to or be consistent with or in furtherance of the statements made
with
respect to the Certificates, the Trust Fund or this Agreement in any Offering
Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein or with the provisions of
any
Servicing Agreement, (iii) to make any other provisions with respect to
matters
or questions arising under this Agreement or (iv) to add, delete, or amend
any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions as evidenced by an Opinion
of
Counsel. No such amendment effected pursuant to the preceding sentence
shall, as
evidenced by an Opinion of Counsel, result in an Adverse REMIC Event, nor
shall
such amendment effected pursuant to clause (iii) of such sentence adversely
affect in any material respect the interests of any Holder. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee, any NIMS Insurer and the Swap Counterparty shall be provided
with
an Opinion of Counsel addressed to the Trustee, any NIMS Insurer and the
Swap
Counterparty (at the expense of the party requesting such amendment) to
the
effect that such amendment is permitted under this Section. Any such amendment
shall be deemed not to adversely affect in any material respect any Holder,
if
the Trustee receives written confirmation from each Rating Agency that
such
amendment will not cause such Rating Agency to reduce then current rating
assigned to the Certificates.
181
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer and the Trustee,
with
the consent of any NIMS Insurer, but without the consent of the Credit
Risk
Manager or the Swap Counterparty (except to the extent that the rights
or
obligations of (1) the Credit Risk Manager or the Swap Counterparty hereunder
or
(2) the Swap Counterparty under the Swap Agreement are affected thereby,
or the
ability of the Trustee on behalf of the Supplemental Interest Trust and
the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap
Counterparty is required) and with the consent of the Holders of not less
than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each
Class of
Certificates affected thereby for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee and any NIMS Insurer receives
an
Opinion of Counsel addressed to the Trustee and the NIMS Insurer, at the
expense
of the party requesting the change, that such change will not cause an
Adverse
REMIC Event and is permitted hereunder; and provided further, that no such
amendment may (i) reduce in any manner the amount of, or delay the timing
of,
payments received on Mortgage Loans which are required to be distributed
on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required
to
consent to any such amendment without the consent of the Holders of 100%
of the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
182
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Master Servicer, the LTURI-holder and the Trustee, but without the consent
of
the Credit Risk Manager, or the Swap Counterparty (except to the extent
that the
rights or obligations of (1) the Credit Risk Manager or the Swap Counterparty
hereunder or (2) the Swap Counterparty under the Swap Agreement, or the
ability
of the Trustee on behalf of the Supplemental Interest Trust and the Trust
Fund
to perform fully and timely its obligations under the Swap Agreement is
adversely affected, in which case prior written consent of the Credit Risk
Manager or the Swap Counterparty, as applicable, is required). Prior to
entering
into any amendment pursuant to this paragraph, the Trustee and the Swap
Counterparty shall be provided with an Opinion of Counsel addressed to
the
Trustee, any NIMS Insurer and the Swap Counterparty (at the expense of
the party
requesting such amendment) to the effect that such amendment is permitted
under
this Section and will not result in an Adverse REMIC Event.
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty, any NIMS Insurer and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to
approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of obtaining
such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall
not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
with
respect to amendment of this Agreement and (ii) except for a Permitted
Servicing
Amendment, any such amendment pursuant to Section 11.03(a)(iii) shall not
be
materially inconsistent with the provisions of such Servicing Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee
to the
extent necessary, in the judgment of the Depositor and its counsel, to
comply
with the Rules.
|
Section
11.04.
|
Voting
Rights.
|
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Trustee,
any
Servicer, the Credit Risk Manager or Affiliates thereof are not to be counted
so
long as such Certificates are owned by the Depositor, the Master Servicer,
the
Trustee, any Servicer, the Credit Risk Manager or any Affiliate
thereof.
183
|
Section
11.05.
|
Provision
of Information.
|
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with
each
other to provide to any Certificateholders, any NIM Security holder and
to any
prospective purchaser of Certificates designated by such holder, upon the
request of such holder or prospective purchaser, any information required
to be
provided to such holder or prospective purchaser to satisfy the condition
set
forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket expenses
incurred by the Master Servicer or the Trustee in providing such information
shall be reimbursed by the Depositor.
(b) The
Trustee shall provide to any person to whom a Prospectus was delivered,
upon the
request of such person specifying the document or documents requested,
(i) a
copy (excluding exhibits) of any report on Form 8-K or Form 10-K filed
with the
Securities and Exchange Commission pursuant to Section 6.20(c) and (ii)
a copy
of any other document incorporated by reference in the Prospectus. Any
reasonable out-of-pocket expenses incurred by the Trustee in providing
copies of
such documents shall be reimbursed by the Depositor.
(c) On
each
Distribution Date, the Trustee shall deliver or cause to be delivered by
first
class mail or make available on its website to the Depositor, Attention:
Contract Finance, a copy of the report delivered to Certificateholders
pursuant
to Section 4.03.
|
Section
11.06.
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS
(OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH
SUCH LAWS.
|
Section
11.07.
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx,
0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO 2007-BC2,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO
2007-BC2, (c) in the case of the Credit Risk Manager, OfficeTiger Global
Real Estate Services Inc., Xxx Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, Attention: Chief Executive Officer, (d) in the case of the Trustee,
the
Corporate Trust Office, (e) in the case of the Master Servicer, Aurora
Loan
Services LLC, 00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention:
Master Servicing, SASCO 2007-BC2, (f) in the case of the Swap Counterparty,
at
the address therefore set forth in the Swap Agreement and (g) in the case
of the
Cap Counterparty, at the address therefore set forth in the Interest Rate
Cap
Agreement or, as to each party, such other address as may hereafter be
furnished
by such party to the other parties in writing. All demands, notices and
communications to a party hereunder shall be in writing and shall be deemed
to
have been duly given when delivered to such party at the relevant address,
facsimile number or electronic mail address set forth above or at such
other
address, facsimile number or electronic mail address as such party may
designate
from time to time by written notice in accordance with this Section
11.07.
184
|
Section
11.08.
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
|
Section
11.09.
|
Indulgences;
No Waivers.
|
Neither
the failure nor any delay on the part of a party to exercise any right,
remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy,
power or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
|
Section
11.11.
|
Benefits
of Agreement.
|
The
Depositor shall promptly notify the Custodians and the Trustee in writing
of the
issuance of any Class of NIMS Securities issued by a NIMS Insurer and the
identity of such NIMS Insurer. Thereafter, the NIMS Insurer shall be deemed
a
third-party beneficiary of this Agreement to the same extent as if it were
a
party hereto, and shall be subject to and have the right to enforce the
provisions of this Agreement so long as the NIMS Securities remaining
outstanding or the NIMS Insurer is owed amounts in respect of its guarantee
of
payment of such NIMS Securities. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than
the
parties to this Agreement and their successors hereunder, the Swap Counterparty
and its successors and assignees under the Swap Agreement, the Holders
of the
Certificates and the NIMS Insurer, any benefit or any legal or equitable
right,
power, remedy or claim under this Agreement, except to the extent specified
in
Sections 5.08 and Section 11.15, as applicable.
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
(a) The
Depositor shall give prompt notice to the Rating Agencies and any NIMS
Insurer
of the occurrence of any of the following events of which it has
notice:
185
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation
of its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section
6.14 and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section
6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Servicing Agreement.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Moody’s, to:
Xxxxx’x
Investor Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
186
If
to
Fitch, to:
Fitch,
Inc.
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
DBRS, to
DBRS,
Inc.
00
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies reports
prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense
of the
Trust Fund, make available to each Rating Agency such information as such
Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
|
Section
11.13.
|
Conflicts.
|
To
the
extent that the terms of this Agreement conflict with the terms of any
Servicing
Agreement, the related Servicing Agreement shall govern, unless such provisions
shall adversely affect the Trustee or the Trust Fund.
|
Section
11.14.
|
Counterparts.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
|
Section
11.15.
|
Transfer
of Servicing.
|
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
Swap Counterparty, any NIMS Insurer and the Trustee thirty days prior to
any
proposed transfer or assignment by such Seller of its rights under any
Servicing
Agreement or of the servicing thereunder or delegation of its rights or
duties
thereunder or any portion thereof to any other Person other than the initial
Servicer under such Servicing Agreement; provided that the Seller shall
not be
required to provide prior notice of (i) any transfer of servicing that
occurs within three months of the Closing Date or to an entity that is
a
Servicer on the Closing Date or (ii) any assignment of any Servicing rights
from the Seller to an affiliate of the Seller. In addition, the ability
of the
Seller to transfer or assign its rights and delegate its duties under a
Servicing Agreement or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
187
(i) Satisfaction
of the conditions to such transfer as set forth in the applicable Servicing
Agreement including, without limitation, receipt of written consent of
any NIMS
Insurer and the Master Servicer to such transfer;
(ii) Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or
Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards
in the
applicable Servicing Agreement, exclusive of any experience in mortgage
loan
origination;
(iv) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to
the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under
the
applicable Servicing Agreement or, in the case of a transfer of servicing
to a
party that is already a Servicer pursuant to this Agreement, an agreement
to add
the related Mortgage Loans to the Servicing Agreement already in effect
with
such Servicer;
(v) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer
a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates; and
188
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to
the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to
timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing,
the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, all funds held by the prior Servicer in respect of
the
Mortgage Loans; (E) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to, after the effective
date of the transfer of servicing to the successor servicer, continue to
forward
to such successor servicer, within one Business Day of receipt, the amount
of
any payments or other recoveries received by the prior Servicer, and to
notify
the successor servicer of the source and proper application of each such
payment
or recovery; and (F) the Seller shall cause the prior Servicer to, after
the
effective date of transfer of servicing to the successor servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such
manner
and to such extent as the successor servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to
perform
the items listed above to the extent provided in the applicable Servicing
Agreement.
189
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers hereunto duly authorized as of the day and
year
first above written.
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
AURORA
LOAN SERVICES LLC, as Master
Servicer
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.,
as
Credit
Risk Manager
By:
/s/
Xxx X. Xxxxx
Name:
Xxx
X. Xxxxx
Title:
President
Solely
for purposes of Sections 5.07(c), 6.11 and 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxx X. Xxx
Name:
Xxxxx X. Xxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of February 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor,
U.S. Bank
National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer and OfficeTiger Global Real Estate Services Inc., as
Credit Risk
Manager with respect to Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2 Mortgage
Pass-Through Certificates, Series 2007-BC2
|
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review
of the
contents thereof, the undersigned, as the Custodian, hereby certifies that
it
has received the documents listed in Section 2.01(b) of the Trust Agreement
for
each Mortgage File pertaining to each Mortgage Loan listed on Schedule
A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian]
By:_____________________________________
Name:
Title:
B-1-1
SCHEDULE
I
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of February 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor,
U.S. Bank
National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer and OfficeTiger Global Real Estate Services Inc., as
Credit Risk
Manager with respect to Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2 Mortgage
Pass-Through Certificates, Series 2007-BC2
|
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as
Custodian, hereby certifies that as to each Mortgage Loan listed in the
Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it has received the applicable documents listed in Section 2.01(b)
of
the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I
hereto, it has reviewed the documents listed in Section 2.01(b) of the
Trust
Agreement and has determined that each such document appears regular on
its face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian]
By:_____________________________________
Name:
Title:
B-2-1
SCHEDULE
I
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICERS]
|
Re:
|
Trust
Agreement dated as of February 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor,
U.S. Bank
National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer and OfficeTiger Global Real Estate Services Inc., as
Credit Risk
Manager with respect to Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2 Mortgage
Pass-Through Certificates, Series 2007-BC2
|
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in
full or listed on Schedule I hereto) it has received the applicable documents
listed in Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I
hereto, it has reviewed the documents listed in Section 2.01(b) of the
Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in
items
(i) through (vi) of the definition of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian]
By:_____________________________________
Name:
Title:
B-3-1
SCHEDULE
I
B-3-2
EXHIBIT
B-4
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as trustee (the “Trustee”) under
the Trust Agreement dated as of February 1, 2007 by and among Structured
Asset
Securities Corporation, as Depositor, the Trustee, Aurora Loan Services
LLC, as
Master Servicer and OfficeTiger Global Real Estate Services Inc., as Credit
Risk
Manager relating to Structured Asset Securities Corporation Mortgage Loan
Trust
2007-BC2 Mortgage Pass-Through Certificates, Series 2007-BC2, without
recourse.
__________________________________
[current
signatory on note]
By:_______________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed
to Trustee
or,
if
applicable, the Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of February 1, 2007 by and among Structured
Asset Securities Corporation, as Depositor, you, as Trustee, Aurora Loan
Services LLC, as Master Servicer and OfficeTiger Global Real Estate Services
Inc., as Credit Risk Manager, (the “Trust Agreement”), the undersigned
[Servicer] [Master Servicer] hereby requests a release of the Mortgage
File held
by you as Trustee with respect to the following described Mortgage Loan
for the
reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The [Servicer] [Master Servicer] hereby certifies that
the
Purchase Price (or PPTL Purchase Price or FPD Purchase Price (in the case
of a
First Payment Default Mortgage Loan)) has been credited to the Certificate
Account or Collection Account, as applicable, pursuant to the Trust
Agreement.)
5. Other.
(Describe)
C-1
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and
will be
returned to you within ten (10) days of our receipt of the Mortgage File,
except
if the Mortgage Loan has been paid in full, or repurchased or substituted
for a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will
be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required
by us
for such purpose).
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
_____________________________________
[Name
of
Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly
organized and
existing under the laws of the [State of __________] [United
States], on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
.
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual
Certificate
(as defined in the Agreement) for the account of, or as agent
(including a
broker, nominee, or other middleman) for, any person or entity
from which
it has not received an affidavit substantially in the form of
this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any
foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all
of its
activities are subject to tax and a majority of its board of
directors is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to
persons in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code
Section
511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement
Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code
(“Code”), (collectively, a “Plan”) or a person acting on behalf of any
such Plan or investing the assets of any such Plan to acquire
a Residual
Certificate; (y) if the Residual Certificate has been the subject
of an
ERISA-Qualifying Underwriting, is an insurance company that is
purchasing
the Residual Certificate with funds contained in an “insurance company
general account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Residual Certificate are covered under Sections I and III of
PTCE 95-60;
or (z) herewith delivers to the Trustee an opinion of counsel
(a “Benefit
Plan Opinion”) satisfactory to the Trustee, and upon which the Trustee,
the Master Servicer, any Servicer, the Depositor and any NIMS
Insurer
shall be entitled to rely, to the effect that the purchase or
holding of
such Residual Certificate by the Investor will not result in
any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975
of the Code and will not subject the Trustee, the Depositor,
the Master
Servicer, any Servicer or any NIMS Insurer to any obligation
in addition
to those undertaken by such entities in the Trust Agreement,
which opinion
of counsel shall not be an expense of the Trust Fund or any of
the above
parties.
|
D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the
Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, U.S. Bank National Association, as
Trustee,
Aurora Loan Services LLC, as Master Servicer and OfficeTiger
Global Real
Estate Services Inc., as Credit Risk Manager, dated as of February
1,
2007, no transfer of the Residual Certificate shall be permitted
to be
made to any person unless the Depositor and Trustee have received
a
certificate from such transferee containing the representations
in
paragraphs 3 and 4 hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any
person or
entity (i) as to which the Purchaser has actual knowledge that
the
requirements set forth in paragraph 3, paragraph 6 or paragraph
10 hereof
are not satisfied or that the Purchaser has reason to believe
does not
satisfy the requirements set forth in paragraph 7 hereof, and
(ii) without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash
flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished
the
transferor and the Trustee with an effective Internal Revenue
Service Form
W-8ECI (Certificate of Foreign Person’s Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct
of a Trade or
Business in the United States) or successor form at the time
and in the
manner required by the Code or (iii) is a Non-U.S. Person that
has
delivered to both the transferor and the Trustee an opinion of
a
nationally recognized tax counsel to the effect that the transfer
of such
Residual Certificate to it is in accordance with the requirements
of the
Code and the regulations promulgated thereunder and that such
transfer of
a Residual Certificate will not be disregarded for federal income
tax
purposes. “Non-U.S. Person” means an individual, corporation, partnership
or other person other than (i) a citizen or resident of the United
States;
(ii) a corporation, partnership or other entity created or organized
in or
under the laws of the United States or any state thereof, including
for
this purpose, the District of Columbia; (iii) an estate that
is subject to
U.S. federal income tax regardless of the source of its income;
(iv) a
trust if a court within the United States is able to exercise
primary
supervision over the administration of the trust and one or more
United
States trustees have authority to control all substantial decisions
of the
trust; and, (v) to the extent provided in Treasury regulations,
certain
trusts in existence on August 20, 1996 that are treated as United
States
persons prior to such date and elect to continue to be treated
as United
States persons.
|
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement
as may be
required to further effectuate the restrictions on transfer of
any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its
agent to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
D-1-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title
of
officer] this _____ day of __________, 20__.
_________________________________
[Name
of
Purchaser]
By:______________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________,
known or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
_______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-BC2
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-BC2
|
||
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment
or
collection of any federal, state or local taxes legally required to be
paid with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue
to pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
LIST
OF
SERVICING AGREEMENTS
|
1.
|
Securitization
Servicing Agreement dated as of February 1, 2007, by and among
LBH, as
seller, HomEq Servicing, as servicer, and the Master
Servicer.
|
|
2.
|
Securitization
Subservicing Agreement dated as of February 1, 2007, by and among
LBH, as
seller, Xxxxx Fargo Bank, N.A., as servicer, and the Master
Servicer.
|
|
3.
|
Servicing
Agreement dated as of February 1, 2007, by and among LBH, as
seller,
Aurora Loan Services LLC, as servicer, and the Master
Servicer.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-BC2
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-BC2
|
Reference
is hereby made to the Trust Agreement dated as of February 1, 2007 (the
“Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer and OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager. Capitalized terms used but not defined herein shall have the meanings
given to them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates
which are held in the form of Definitive Certificates registered in the
name of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the
name of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred
in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Placement Agent and the Depositor.
_____________________________________
[Name
of
Transferor]
By:__________________________________
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTORS
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Structured Asset Securities Corporation Mortgage Loan Trust 2007-BC2 Mortgage
Pass-Through Certificates, Series 2007-BC2, [Class B1] [Class B2] Certificates
(the “Privately Offered Certificates”) of the Structured Asset Securities
Corporation (the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended
(the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf
of any
accounts for which we are acting as hereinafter stated, that
if we should
sell any Privately Offered Certificates within two years of the
later of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned
by the
Depositor or any affiliate of the Depositor (which includes the
Placement
Agent) we will do so only (A) to the Depositor, (B) to “qualified
institutional buyers” (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act
(“QIBs”), (C) pursuant to the exemption from registration provided by
Rule
144 under the Securities Act, or (D) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an “Institutional
Accredited Investor”) which, prior to such transfer, delivers to the
Trustee under the Trust Agreement dated as of February 1, 2007
by and
among the Depositor, Aurora Loan Services LLC, as Master Servicer,
U.S.
Bank National Association, as Trustee (the “Trustee”) and OfficeTiger
Global Real Estate Services Inc., as Credit Risk Manager, a signed
letter
in the form of this letter; and we further agree, in the capacities
stated
above, to provide to any person purchasing any of the Privately
Offered
Certificates from us a notice advising such purchaser that resales
of the
Privately Offered Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any
Privately
Offered Certificates to an Institutional Accredited Investor,
we will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed
sale is
being made pursuant to an exemption from, or in a transaction
not subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased
by us will
bear a legend to the foregoing
effect.
|
G-1
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment
purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such
knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting
are each able
to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring
the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
| (5) |
We
have received such information as we deem necessary in order
to make our
investment decision.
|
| (6) |
If
we are acquiring ERISA-Restricted Certificates, we understand
that in
accordance with ERISA, the Code and the Exemption, no Plan and
no person
acting on behalf of such a Plan may acquire such Certificate
except in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect
to the
matters covered hereby.
Very
truly yours,
__________________________________
[Purchaser]
By:
________________________________
Name:
Title:
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of
which he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor either (x) is not,
and on
__________________ [date of transfer] will not be, an employee benefit
plan or
other retirement arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”)
or a person acting on behalf of any such Plan or investing the assets of
any
such Plan to acquire a Certificate; (y) if the Certificate has been the
subject
of an ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general account”
as defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”)
95-60 and the purchase and holding of the Certificate are covered under
Sections
I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an opinion
of
counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and upon which
the Trustee, the Master Servicer, any Servicer, the Depositor and any NIMS
Insurer shall be entitled to rely, to the effect that the purchase or holding
of
such Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will
not
subject the Trustee, the Depositor, the Master Servicer, any Servicer or
any
NIMS Insurer to any obligation in addition to those undertaken by such
entities
in the Trust Agreement, which opinion of counsel shall not be an expense
of the
Trust Fund or any of the above parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination
of the
Swap Agreement and the Interest Rate Cap Agreement, either (i) the Investor
is
neither a Plan nor a person acting on behalf of any such Plan or using
the
assets of any such Plan to effect such transfer or (ii) the acquisition
and
holding of the ERISA-Restricted Trust Certificate are eligible for exemptive
relief under the statutory exemption for nonfiduciary service providers
under
Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, XXXX 00-00,
XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23 or some other applicable
exemption.
H-1
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer and OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager, dated as of February 1, 2007, no transfer of the ERISA-Restricted
Certificates or the ERISA-Restricted Trust Certificates shall be permitted
to be
made to any person unless the Trustee have received a certificate from
such
transferee in the form hereof.
H-2
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_____________________________
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
|
Personally
appeared before me the above-named ________________, known or proved to
me to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed
the same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-3
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
I-1
EXHIBIT
J
MONTHLY
ELECTRONIC DATA TRANSMISSION
J-1
EXHIBIT
K
DESCRIPTION
OF CUSTODIAL AGREEMENTS
|
1.
|
Custodial
Agreement dated as of February 1, 2007 between LaSalle Bank National
Association, as Custodian, and U.S. Bank National Association,
as
Trustee.
|
|
2.
|
Custodial
Agreement dated as of February 1, 2007 between Xxxxx Fargo Bank,
N.A., as
Custodian, and U.S. Bank National Association, as
Trustee.
|
|
3.
|
Custodial
Agreement dated as of February 1, 2007 between U.S. Bank National
Association, as Custodian, and U.S. Bank National Association,
as
Trustee.
|
K-1
EXHIBIT
L
LIST
OF
CREDIT RISK MANAGEMENT AGREEMENTS
|
1)
|
Loan
Performance Monitoring Agreement dated February 28, 2007 between
the
Credit Risk Manager and HomEq Servicing, as
servicer.
|
|
2)
|
Loan
Performance Monitoring Agreement dated February 28, 2007 between
the
Credit Risk Manager and Aurora Loan Services LLC, as
servicer.
|
|
3)
|
Loan
Performance Monitoring Agreement dated February 28, 2007 between
the
Credit Risk Manager and Xxxxx Fargo Bank, N.A., as
servicer.
|
X-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-BC2
|
|
|
Mortgage
Pass-Through Certificates Series
2007-BC2
|
||
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager
and U.S. Bank National Association, as Trustee, dated as of February 1,
2007.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted
Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions
set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
|
e.
|
the
transferee is not a U.S. person (as defined in Regulation
S).
|
M-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
X-0-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-BC2
|
|
|
Mortgage
Pass-Through Certificates Series
2007-BC2
|
||
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager
and U.S. Bank National Association, as Trustee, dated as of February 1,
2007.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any
such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with
any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
M-2-1
EXHIBIT
N
INTEREST
RATE CAP AGREEMENT
N-1
EXHIBIT
O
SWAP
AGREEMENT
X-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Master
Servicer
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or
their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor
or issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the
sales and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
P-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of
any grace
period and provision of any required notice)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the
distribution
period in which updated information is required pursuant to
the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the
distribution
period in which updated information is required pursuant to
the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during
the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
P-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
(1) This
information to be provided pursuant to the applicable Servicing
Agreement.
(2) This
information to be provided pursuant to the applicable Custodial
Agreement.
X-0-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during
the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the
distribution
period in which updated information is required pursuant to
the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the
distribution
period in which updated information is required pursuant to
the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the
distribution
period in which updated information is required pursuant to
the
Items.
|
|
P-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or
their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer)
|
Servicer(2)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an
affiliate of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other
hand, that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
P-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing
Entity on
the one hand, and (b) any of the following parties (or their
affiliates)
on the other hand, that exist currently or within the past
two years and
that are material:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
(1) This
information to be provided pursuant to the applicable Custodial
Agreement.
(2) This
information to be provided pursuant to the applicable Servicing
Agreement.
X-0-0
XXXXXXX
X-0
|
XXXX
0-X DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with
respect to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at
the time of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
P-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct
Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event,
including event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which
are disclosed
in the monthly statements to the Certificateholders.
|
Depositor
Master
Servicer
Trustee
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Trust Agreement.
|
Trustee
(only to the extent it is a party to any such documents)
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers
or
trustee.
|
Master
Servicer/Depositor/
Servicer(1)/Trustee
(as to itself)
|
|
Reg
AB disclosure about any new servicer or master servicer is
also
required.
|
Servicer(1)/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
New
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its
terms, the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
Depositor/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
P-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
(so long as the Trustee is the Paying Agent)
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
Certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
(1) This
information to be provided pursuant to the applicable Servicing
Agreement.
(2) This
information to be provided pursuant to the applicable Custodial
Agreement.
X-0-0
XXXXXXX
X-0
ADDITIONAL
DISCLOSURE NOTIFICATION
U.S.
Bank
National Association, as Trustee
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attn:
Corporate Trust Services -SASCO 2007-BC2 - SEC Report Processing
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of February
1,
2007, by and among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer, OfficeTiger Global Real Estate
Services
Inc., as Credit Risk Manager and U.S. Bank National Association, as Trustee,
the
undersigned, as [ ], hereby notifies you that certain events have come
to our
attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[
], phone number:
[
]; email address:
[
].
[NAME
OF
PARTY],
as
[role]
By:
Name:
Title:
P-4-1
|
cc:
|
U.S.
Bank National Association
|
|
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Structured
Asset Securities Corporation
|
|
|
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
P-4-2
EXHIBIT
Q-1
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
|
Re:
|
SASCO
2007-BC2
|
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Trustee, and each of their officers, directors
and
affiliates that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange
Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the
Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered
by the Company to any of the Depositor, the Master Servicer and the Trustee
pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be
provided
by the Company under the Agreement has been provided to the Depositor,
the
Master Servicer and the Trustee;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and
except as
disclosed in [the Compliance Statement,] the Servicing Assessment or
the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
Q-1-1
(5) [The
Compliance Statement required to be delivered by the Company pursuant
to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report
required
to be provided by the Company and [by any Subservicer or Subcontractor]
pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Trustee. Any material instances of noncompliance described in such
reports
have been disclosed to the Depositor, the Master Servicer and the Trustee.
Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them
in the
Trust Agreement, dated as of February 1, 2007 (the “Trust Agreement”) by and
among Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer
and
OfficeTiger Global Real Estate Services Inc., as Credit Risk Manager.
Capitalized terms used but not defined herein shall have the meanings
given to
them in the Trust Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
Q-1-2
EXHIBIT
Q-2
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
TO
BE
PROVIDED BY THE TRUSTEE
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-BC2 (the
“Trust”)
Mortgage Pass-Through Certificates, Series 2007-BC2, issued
pursuant to
the Trust Agreement, dated as of February 1, 2007, among Structured
Asset
Securities Corporation, as Depositor, Aurora Loan Services,
LLC, as Master
Servicer, OfficeTiger Global Real Estate Services Inc., as
Credit Risk
Manager, and U.S. Bank National Association,
as
Trustee
|
The
Trustee hereby certifies to the Depositor and the Master Servicer, and
their
respective officers, directors and affiliates, and with the knowledge
and intent
that they will rely upon this certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the
“Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Trustee’s assessment of compliance and related attestation
report referred to below, taken as a whole, do not contain any untrue
statement
of a material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were
made, not misleading with respect to the period covered by such assessment
of
compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the
Trustee
under the Trust Agreement for inclusion in the Reports is included in
the
Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under
the
Trust Agreement, and based on my knowledge and the compliance review
conducted
in preparing the assessment of compliance of the Trustee required by
the Trust
Agreement, and except as disclosed in the Reports, the Trustee has fulfilled
its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable
to the
Trustee for asset-backed securities of the Trustee and each Subcontractor
utilized by the Trustee and related attestation report on assessment
of
compliance with servicing criteria applicable to it required to be included
in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange
Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual
Report.
Any material instances of non-compliance are described in such report
and have
been disclosed in the Annual Report.
Q-2-1
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
master servicer, subservicer(s), depositor, trustee, custodian(s)]
Date:
U.S.
BANK
NATIONAL ASSOCIATION,
solely
in
its capacity as Trustee
[Signature]
[Title]
Q-2-2
EXHIBIT
R
R-1
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
To:
[_______]
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion
of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall
have the
meanings assigned to them in the Trust Agreement dated as of February
1, 2007
(the “Agreement”), by and among Structured Asset Securities Corporation, as
Depositor, U.S. Bank National Association, as Trustee, Aurora Loan Services
LLC,
as Master Servicer and OfficeTiger Global Real Estate Services Inc.,
as Credit
Risk Manager.
If
the
Trustee and the Paying Agent are the same party, the servicing criteria
of the
Paying Agent listed below will be included in the Trustee’s report.
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
General Servicing
Considerations
|
|||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or
other triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party’s
performance and compliance with such servicing activities.
|
||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect
on the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|||
|
Cash Collection and Administration
|
S-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial
bank accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or
distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
|||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve
accounts or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
X
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
S-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who
prepared the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
X
|
||
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are
prepared in
accordance with timeframes and other terms set forth in the
transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the Servicer.
|
X
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to
the Servicer’s
investor records, or such other number of days specified in
the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
||
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the
transaction
agreements or related pool asset documents.
|
|
|||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by
the
transaction agreements
|
|
|||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are
made, reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
X
|
S-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or
such other
number of days specified in the transaction agreements, and
allocated to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
||||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such
other period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
S-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified
in the
transaction agreements; (B) interest on such funds is paid,
or credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within
30 calendar
days of full repayment of the related pool assets, or such
other number of
days specified in the transaction agreements.
|
||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days
prior to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be
made on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business
days to the
obligor’s records maintained by the servicer, or such other number
of days
specified in the transaction agreements.
|
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as
set forth in
the transaction agreements.
|
X
|
S-5
EXHIBIT
T
[RESERVED]
T-1
EXHIBIT
U
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF CERTIFICATION
Re:
Structured Asset Securities Corporation Mortgage Loan Trust 2007-BC2
Mortgage
Pass-Through Certificates, Series 2007-BC2, issued pursuant to the Trust
Agreement dated as of February 1, 2007, among Structured Asset Securities
Corporation, as Depositor (the “Depositor”), Aurora Loan Services LLC, as Master
Servicer, OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager
and U.S. Bank National Association, as Trustee (the “Trustee”).
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.
(the
“Credit Risk Manager”) certifies to the Depositor, the Sponsor, the Master
Servicer, the Trustee, and [10-K Signatory Entity] its officers, directors
and
affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager, taken as a whole,
the
information in the reports provided during the calendar year
immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting Agreement dated
as of
February 28, 2004 (the
“Master Consulting Agreement”), by and between the Credit Risk Manager and
Xxxxxx Brothers Holdings Inc. and pursuant to Transaction Addendum
SASCO
2007-BC2 (the “Transaction Addendum SASCO 2007-BC2”), does not contain any
untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances
under
which such statements were made, not misleading as of the date
that each
of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the
Master
Consulting Agreement and Transaction Addendum SASCO 2007-BC2
throughout
the Relevant Year.
|
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.
By:____________________________________
Name:_________________________________
Title:
_________________________________
U-1
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association.
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: OfficeTiger Global Real Estate Services Inc..
Swap
Counterparty: Xxxxxx Brothers Special Financing Inc.
Cap
Counterparty: Xxxxxx Brothers Special Financing Inc.
Servicer(s):
HomEq Servicing, Xxxxx Fargo Bank N.A. and Aurora Loan Services LLC
Originator(s):
Equifirst Corporation and Xxxxxx Brothers Bank, FSB
Custodian(s):
U.S. Bank National Association, LaSalle Bank National Association and
Xxxxx
Fargo Bank, N.A.
V-1
EXHIBIT
W
[RESERVED]
W-1
EXHIBIT
X
[Reserved]
X-1
EXHIBIT
Y
FORM
OF
CALL OPTION NOTICE
[Date]
[___________]
[___________]
[___________]
Attention:
[___________]
| Re: |
CALL
OPTION NOTICE
Trust
Agreement relating to the Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2 Mortgage Pass-Through Certificates, Series
2007-BC2,
dated as of February 1, 2007, among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer,
OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager and
U.S. Bank National
Association, as
Trustee
|
Ladies
and Gentlemen:
In
accordance with the Section 7.01(d)(vii) of the above-referenced Trust
Agreement, Aurora Loan Services LLC, as Master Servicer, hereby notifies
you
that the option to purchase the Mortgage Loans and certain other property
of the
Trust Fund may be exercised on the Distribution Date of this month. The
Bid Due
Date for this month is [_____] [__], 20[__].
[In
accordance with Section 7.01(d)(vii) of the Trust Agreement, if no Call
Option
Holder submits a Purchaser Call Option Notice on or before such Bid Due
Date,
then, on the immediately succeeding Distribution Date, the Master Servicer
may
exercise the option to purchase the Mortgage Loans and certain other
property of
the Trust Fund pursuant to Section 7.01(b) or Section 7.01(c) of the
Trust
Agreement.]
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
Aurora
Loan Services LLC
By:
___________________________
Name:
_________________________
Title:
__________________________
Y-1
EXHIBIT
Z
FORM
OF
PURCHASER CALL OPTION NOTICE
[Date]
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn:
SASCO 2007-BC2
|
Re:
|
PURCHASER
CALL OPTION NOTICE
|
|
Trust
Agreement relating to the Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-BC2 Mortgage Pass-Through Certificates, Series
2007-BC2,
dated as of February 1, 2007, among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer,
OfficeTiger Global Real Estate Services Inc., as Credit Risk
Manager and
U.S. Bank National
Association, as Trustee
|
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(iii) of the above-referenced Trust Agreement,
[NIM Residual Securities holder][Class X Certificateholder] hereby requests
Aurora Loan Services LLC (the “Master Servicer”) to exercise the option to
purchase on its behalf with respect to all, but no fewer than all, of
the
Mortgage Loans and other property of the Trust Fund relating to the Structured
Asset Securities Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2007-BC2.
The
Bid
Price for such assets shall be $___________.
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
[CALL
OPTION HOLDER]
By:
___________________________
Name:
_________________________
Title:
__________________________
Z-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “SASCO 2007-BC2 Mortgage Loan
Schedules” at XxXxx Xxxxxx LLP]
Schedule-A-1
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOANS
Schedule
B-1
SCHEDULE
C
PROJECTED
AGGREGATE SCHEDULED PRINCIPAL BALANCE OF FORTY-YEAR MORTGAGE
LOANS
|
Distribution
Date occurring in:
|
Aggregate
Scheduled
Principal
Balance of the Mortgage Loans
Having
Forty-Year Original
Terms
to Maturity ($)
|
|
March
2017
|
1,161,500.62
|
|
April
2017
|
1,145,460.34
|
|
May
2017
|
1,129,637.66
|
|
June
2017
|
1,114,029.64
|
|
July
2017
|
1,098,633.40
|
|
August
2017
|
1,083,446.07
|
|
September
2017
|
1,068,464.83
|
|
October
2017
|
1,053,686.92
|
|
November
2017
|
1,039,109.57
|
|
December
2017
|
1,024,730.09
|
|
January
2018
|
1,010,545.81
|
|
February
2018
|
996,554.10
|
|
March
2018
|
982,752.35
|
|
April
2018
|
969,138.00
|
|
May
2018
|
955,708.52
|
|
June
2018
|
942,461.43
|
|
July
2018
|
929,394.25
|
|
August
2018
|
916,504.57
|
|
September
2018
|
903,789.98
|
|
October
2018
|
891,248.12
|
|
November
2018
|
878,876.67
|
|
December
2018
|
866,673.31
|
|
January
2019
|
854,635.79
|
|
February
2019
|
842,761.87
|
|
March
2019
|
831,049.33
|
|
April
2019
|
819,496.00
|
|
May
2019
|
808,099.73
|
|
June
2019
|
796,858.41
|
|
July
2019
|
785,769.93
|
|
August
2019
|
774,832.23
|
|
September
2019
|
764,043.28
|
|
October
2019
|
753,401.08
|
|
November
2019
|
742,903.64
|
|
December
2019
|
732,549.00
|
|
January
2020
|
722,335.24
|
|
February
2020
|
712,260.46
|
|
March
2020
|
702,322.77
|
|
April
2020
|
692,520.34
|
|
May
2020
|
682,851.32
|
|
June
2020
|
673,313.93
|
|
July
2020
|
663,906.38
|
|
August
2020
|
654,626.92
|
|
September
2020
|
645,473.82
|
|
October
2020
|
636,445.37
|
Schedule
C-1-1
|
Distribution
Date occurring in:
|
Aggregate
Scheduled
Principal
Balance of the Mortgage Loans
Having
Forty-Year Original
Terms
to Maturity ($)
|
|
November
2020
|
627,539.90
|
|
December
2020
|
618,755.73
|
|
January
2021
|
610,091.23
|
|
February
2021
|
601,544.79
|
|
March
2021
|
593,114.80
|
|
April
2021
|
584,799.70
|
|
May
2021
|
576,597.94
|
|
June
2021
|
568,507.98
|
|
July
2021
|
560,528.31
|
|
August
2021
|
552,657.44
|
|
September
2021
|
544,893.90
|
|
October
2021
|
537,236.25
|
|
November
2021
|
529,683.05
|
|
December
2021
|
522,232.89
|
|
January
2022
|
514,884.38
|
|
February
2022
|
507,636.14
|
|
March
2022
|
500,486.82
|
|
April
2022
|
493,435.08
|
|
May
2022
|
486,479.60
|
|
June
2022
|
479,619.09
|
|
July
2022
|
472,852.26
|
|
August
2022
|
466,177.83
|
|
September
2022
|
459,594.57
|
|
October
2022
|
453,101.24
|
|
November
2022
|
446,696.63
|
|
December
2022
|
440,379.53
|
|
January
2023
|
434,148.76
|
|
February
2023
|
428,003.16
|
|
March
2023
|
421,941.57
|
|
April
2023
|
415,962.86
|
|
May
2023
|
410,065.91
|
|
June
2023
|
404,249.60
|
|
July
2023
|
398,512.86
|
|
August
2023
|
392,854.60
|
|
September
2023
|
387,273.76
|
|
October
2023
|
381,769.30
|
|
November
2023
|
376,340.17
|
|
December
2023
|
370,985.38
|
|
January
2024
|
365,703.90
|
|
February
2024
|
360,494.74
|
|
March
2024
|
355,356.93
|
|
April
2024
|
350,289.51
|
|
May
2024
|
345,291.51
|
|
June
2024
|
340,362.00
|
|
July
2024
|
335,500.06
|
|
August
2024
|
330,704.76
|
|
September
2024
|
325,975.21
|
|
October
2024
|
321,310.52
|
|
November
2024
|
316,709.80
|
|
December
2024
|
312,172.20
|
|
January
2025
|
307,696.86
|
|
February
2025
|
303,282.93
|
Schedule
C-1-2
|
Distribution
Date occurring in:
|
Aggregate
Scheduled
Principal
Balance of the Mortgage Loans
Having
Forty-Year Original
Terms
to Maturity ($)
|
|
March
2025
|
298,929.59
|
|
April
2025
|
294,636.01
|
|
May
2025
|
290,401.38
|
|
June
2025
|
286,224.91
|
|
July
2025
|
282,105.81
|
|
August
2025
|
278,043.30
|
|
September
2025
|
274,036.61
|
|
October
2025
|
270,085.00
|
|
November
2025
|
266,187.70
|
|
December
2025
|
262,344.00
|
|
January
2026
|
258,553.15
|
|
February
2026
|
254,814.46
|
|
March
2026
|
251,127.19
|
|
April
2026
|
247,490.67
|
|
May
2026
|
243,904.21
|
|
June
2026
|
240,367.12
|
|
July
2026
|
236,878.74
|
|
August
2026
|
233,438.40
|
|
September
2026
|
230,045.46
|
|
October
2026
|
226,699.27
|
|
November
2026
|
223,399.20
|
|
December
2026
|
220,144.62
|
|
January
2027
|
216,934.92
|
|
February
2027
|
213,769.48
|
|
March
2027
|
210,647.72
|
|
April
2027
|
207,569.03
|
|
May
2027
|
204,532.83
|
|
June
2027
|
201,538.55
|
|
July
2027
|
198,585.62
|
|
August
2027
|
195,673.47
|
|
September
2027
|
192,801.55
|
|
October
2027
|
189,969.32
|
|
November
2027
|
187,176.23
|
|
December
2027
|
184,421.77
|
|
January
2028
|
181,705.39
|
|
February
2028
|
179,026.59
|
|
March
2028
|
176,384.86
|
|
April
2028
|
173,779.69
|
|
May
2028
|
171,210.59
|
|
June
2028
|
168,677.06
|
|
July
2028
|
166,178.63
|
|
August
2028
|
163,714.81
|
|
September
2028
|
161,285.14
|
|
October
2028
|
158,889.15
|
|
November
2028
|
156,526.39
|
|
December
2028
|
154,196.40
|
|
January
2029
|
151,898.75
|
|
February
2029
|
149,632.98
|
|
March
2029
|
147,398.67
|
|
April
2029
|
145,195.38
|
|
May
2029
|
143,022.71
|
|
June
2029
|
140,880.23
|
Schedule
C-1-3
|
Distribution
Date occurring in:
|
Aggregate
Scheduled
Principal
Balance of the Mortgage Loans
Having
Forty-Year Original
Terms
to Maturity ($)
|
|
July
2029
|
138,767.52
|
|
August
2029
|
136,684.20
|
|
September
2029
|
134,629.85
|
|
October
2029
|
132,604.08
|
|
November
2029
|
130,606.50
|
|
December
2029
|
128,636.74
|
|
January
2030
|
126,694.41
|
|
February
2030
|
124,779.14
|
|
March
2030
|
122,890.56
|
|
April
2030
|
121,028.31
|
|
May
2030
|
119,192.03
|
|
June
2030
|
117,381.37
|
|
July
2030
|
115,595.97
|
|
August
2030
|
113,835.50
|
|
September
2030
|
112,099.61
|
|
October
2030
|
110,387.97
|
|
November
2030
|
108,700.25
|
|
December
2030
|
107,036.13
|
|
January
2031
|
105,395.27
|
|
February
2031
|
103,777.38
|
|
March
2031
|
102,182.13
|
|
April
2031
|
100,609.21
|
|
May
2031
|
99,058.32
|
|
June
2031
|
97,529.16
|
|
July
2031
|
96,021.44
|
|
August
2031
|
94,534.86
|
|
September
2031
|
93,069.13
|
|
October
2031
|
91,623.97
|
|
November
2031
|
90,199.11
|
|
December
2031
|
88,794.25
|
|
January
2032
|
87,409.13
|
|
February
2032
|
86,043.49
|
|
March
2032
|
84,697.04
|
|
April
2032
|
83,369.54
|
|
May
2032
|
82,060.73
|
|
June
2032
|
80,770.34
|
|
July
2032
|
79,498.13
|
|
August
2032
|
78,243.86
|
|
September
2032
|
77,007.26
|
|
October
2032
|
75,788.11
|
|
November
2032
|
74,586.16
|
|
December
2032
|
73,401.19
|
|
January
2033
|
72,232.95
|
|
February
2033
|
71,081.22
|
|
March
2033
|
69,945.78
|
|
April
2033
|
68,826.40
|
|
May
2033
|
67,722.86
|
|
June
2033
|
66,634.94
|
|
July
2033
|
65,562.44
|
|
August
2033
|
64,505.14
|
|
September
2033
|
63,462.83
|
|
October
2033
|
62,435.31
|
Schedule
C-1-4
|
Distribution
Date occurring in:
|
Aggregate
Scheduled
Principal
Balance of the Mortgage Loans
Having
Forty-Year Original
Terms
to Maturity ($)
|
|
November
2033
|
61,422.37
|
|
December
2033
|
60,423.82
|
|
January
2034
|
59,439.46
|
|
February
2034
|
58,469.10
|
|
March
2034
|
57,512.54
|
|
April
2034
|
56,569.59
|
|
May
2034
|
55,640.07
|
|
June
2034
|
54,723.80
|
|
July
2034
|
53,820.59
|
|
August
2034
|
52,930.26
|
|
September
2034
|
52,052.64
|
|
October
2034
|
51,187.55
|
|
November
2034
|
50,334.83
|
|
December
2034
|
49,494.29
|
|
January
2035
|
48,665.78
|
|
February
2035
|
47,849.13
|
|
March
2035
|
47,044.18
|
|
April
2035
|
46,250.77
|
|
May
2035
|
45,468.73
|
|
June
2035
|
44,697.92
|
|
July
2035
|
43,938.17
|
|
August
2035
|
43,189.34
|
|
September
2035
|
42,451.27
|
|
October
2035
|
41,723.83
|
|
November
2035
|
41,006.86
|
|
December
2035
|
40,300.21
|
|
January
2036
|
39,603.75
|
|
February
2036
|
38,917.34
|
|
March
2036
|
38,240.84
|
|
April
2036
|
37,574.11
|
|
May
2036
|
36,917.02
|
|
June
2036
|
36,269.43
|
|
July
2036
|
35,631.22
|
|
August
2036
|
35,002.25
|
|
September
2036
|
34,382.40
|
|
October
2036
|
33,771.54
|
|
November
2036
|
33,169.55
|
|
December
2036
|
32,576.31
|
|
January
2037
|
31,991.70
|
|
February
2037
|
31,415.59
|
|
March
2037
|
30,847.87
|
Schedule
C-1-5
