HSI ASSET SECURITIZATION CORPORATION, Depositor, WELLS FARGO BANK, N.A., Master Servicer, Securities Administrator and Custodian, DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., Credit Risk Manager
EXECUTION
HSI
ASSET
SECURITIZATION CORPORATION,
Depositor,
XXXXX
FARGO BANK, N.A.,
Master
Servicer, Securities Administrator and Custodian,
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and
OFFICETIGER
GLOBAL REAL ESTATE SERVICES INC.,
Credit
Risk Manager
Dated
as
of May 1, 2007
HSI
ASSET
SECURITIZATION CORPORATION TRUST 2007-NC1
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2007-NC1
TABLE
OF
CONTENTS
Page
ARTICLE
I
|
||
DEFINITIONS
|
||
ARTICLE
II
|
||
CONVEYANCE
OF MORTGAGE LOANS;
|
||
REPRESENTATIONS
AND WARRANTIES
|
||
Section
2.01
|
Conveyance
of Mortgage Loans
|
45
|
Section
2.02
|
Acceptance
by the Custodian of the Mortgage Loans
|
48
|
Section
2.03
|
Remedies
for Breaches of Representations and Warranties with Respect to the
Mortgage Loans
|
48
|
Section
2.04
|
Execution
and Delivery of Certificates
|
50
|
Section
2.05
|
REMIC
Matters
|
50
|
Section
2.06
|
Representations
and Warranties of the Depositor
|
50
|
ARTICLE
III
|
||
ADMINISTRATION
AND SERVICING
|
||
OF
MORTGAGE LOANS
|
||
Section
3.01
|
Establishment
of Certain Accounts
|
51
|
Section
3.02
|
Investment
of Funds in the Distribution Account
|
53
|
Section
3.03
|
Report
on Assessment of Compliance with Relevant Servicing
Criteria.
|
54
|
Section
3.04
|
Report
on Attestation of Compliance with Relevant Servicing
Criteria.
|
55
|
Section
3.05
|
Annual
Officer’s Certificates.
|
55
|
Section
3.06
|
Indemnification.
|
56
|
Section
3.07
|
Advances
|
57
|
ARTICLE
IV
|
||
DISTRIBUTIONS
|
||
Section
4.01
|
The
Distribution Account
|
58
|
Section
4.02
|
Priorities
of Distribution
|
59
|
Section
4.03
|
Monthly
Statements to Certificateholders
|
63
|
Section
4.04
|
Certain
Matters Relating to the Determination of LIBOR
|
66
|
Section
4.05
|
Allocation
of Applied Realized Loss Amounts
|
66
|
Section
4.06
|
Supplemental
Interest Trust.
|
67
|
Section
4.07
|
Rights
of the Swap Counterparty.
|
69
|
Section
4.08
|
Termination
Receipts.
|
69
|
ARTICLE
V
|
||
THE
CERTIFICATES
|
||
Section
5.01
|
The
Certificates
|
71
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
72
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
78
|
Section
5.04
|
Persons
Deemed Owners
|
78
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses
|
78
|
Section
5.06
|
Maintenance
of Office or Agency
|
79
|
ARTICLE
VI
|
||
THE
DEPOSITOR
|
||
Section
6.01
|
Liabilities
of the Depositor
|
79
|
Section
6.02
|
Merger
or Consolidation of the Depositor
|
79
|
Section
6.03
|
Limitation
on Liability of the Depositor and Others.
|
79
|
ARTICLE
VII
|
||
DEFAULT
|
||
Section
7.01
|
Master
Servicer to Act; Appointment of Successor
|
80
|
Section
7.02
|
Notification
to Certificateholders
|
82
|
ARTICLE
VIII
|
||
CONCERNING
THE TRUSTEE
|
||
Section
8.01
|
Duties
of the Trustee
|
83
|
Section
8.02
|
Certain
Matters Affecting the Trustee
|
83
|
Section
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans
|
85
|
Section
8.04
|
Trustee
May Own Certificates
|
85
|
Section
8.05
|
Trustee’s
Fees Indemnification and Expenses
|
85
|
Section
8.06
|
Eligibility
Requirements for the Trustee
|
87
|
Section
8.07
|
Resignation
and Removal of the Trustee
|
87
|
Section
8.08
|
Successor
Trustee
|
88
|
Section
8.09
|
Merger
or Consolidation of the Trustee
|
88
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
88
|
Section
8.11
|
Tax
Matters
|
90
|
Section
8.12
|
Commission
Reporting
|
94
|
-ii-
Section
8.13
|
Tax
Classification of the Excess Reserve Fund Account and the Supplemental
Interest Trust
|
101
|
ARTICLE
IX
|
||
ADMINISTRATION
OF THE MORTGAGE LOANS
|
||
BY
THE MASTER SERVICER
|
||
Section
9.01
|
Duties
of the Master Servicer; Enforcement of Servicer’s
Obligations.
|
101
|
Section
9.02
|
[Reserved]
|
102
|
Section
9.03
|
[Reserved]
|
102
|
Section
9.04
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
102
|
Section
9.05
|
Representations
and Warranties of the Master Servicer
|
103
|
Section
9.06
|
Master
Servicer Events of Default
|
104
|
Section
9.07
|
Waiver
of Default.
|
106
|
Section
9.08
|
Successor
to the Master Servicer.
|
106
|
Section
9.09
|
[Reserved].
|
107
|
Section
9.10
|
Merger
or Consolidation.
|
107
|
Section
9.11
|
Resignation
of the Master Servicer.
|
107
|
Section
9.12
|
Assignment
or Delegation of Duties by the Master Servicer.
|
108
|
Section
9.13
|
Limitation
on Liability of the Master Servicer.
|
108
|
Section
9.14
|
Indemnification;
Third Party Claims.
|
109
|
Section
9.15
|
Duties
of the Credit Risk Manager.
|
109
|
Section
9.16
|
Limitation
Upon Liability of the Credit Risk Manager.
|
110
|
Section
9.17
|
Removal
and Resignation of Credit Risk Manager.
|
111
|
ARTICLE
X
|
||
CONCERNING
THE SECURITIES ADMINISTRATOR
|
||
Section
10.01
|
Duties
of Securities Administrator.
|
111
|
Section
10.02
|
Certain
Matters Affecting the Securities Administrator.
|
112
|
Section
10.03
|
Securities
Administrator Not Liable for Certificates or Mortgage
Loans.
|
114
|
Section
10.04
|
Securities
Administrator May Own Certificates.
|
114
|
Section
10.05
|
Securities
Administrator’s Fees and Expenses.
|
114
|
Section
10.06
|
Eligibility
Requirements for Securities Administrator.
|
115
|
Section
10.07
|
Resignation
and Removal of Securities Administrator.
|
116
|
Section
10.08
|
Successor
Securities Administrator.
|
117
|
Section
10.09
|
Merger
or Consolidation of Securities Administrator.
|
117
|
Section
10.10
|
Assignment
or Delegation of Duties by the Securities Administrator.
|
117
|
ARTICLE
XI
|
||
TERMINATION
|
||
Section
11.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans
|
118
|
-iii-
Section
11.02
|
Final
Distribution on the Certificates
|
119
|
Section
11.03
|
Additional
Termination Requirements
|
120
|
ARTICLE
XII
|
||
MISCELLANEOUS
PROVISIONS
|
||
Section
12.01
|
Amendment
|
120
|
Section
12.02
|
Recordation
of Agreement; Counterparts
|
123
|
Section
12.03
|
Governing
Law
|
123
|
Section
12.04
|
Intention
of Parties
|
123
|
Section
12.05
|
Notices
|
124
|
Section
12.06
|
Severability
of Provisions
|
125
|
Section
12.07
|
Limitation
on Rights of Certificateholders
|
125
|
Section
12.08
|
Certificates
Nonassessable and Fully Paid
|
126
|
Section
12.09
|
Rule of
Construction
|
126
|
Section
12.10
|
Waiver
of Jury Trial
|
126
|
-iv-
SCHEDULES
Schedule I | Mortgage Loan Schedule |
EXHIBITS
|
|
Exhibit A
|
Form
of Class A and Class M Certificates
|
Exhibit B
|
Form
of Class P Certificate
|
Exhibit C
|
Form
of Class R Certificate
|
Exhibit D
|
Form
of Class X Certificate
|
Exhibit E
|
Form
of Initial Certification of Custodian
|
Exhibit F
|
Form
of Document Certification and Exception Report of
Custodian
|
Exhibit G
|
Form
of Residual Transfer Affidavit
|
Exhibit H
|
Form
of Transferor Certificate
|
Exhibit I-A
|
Form
of Rule 144A Investment Letter
|
Exhibit
I-B
|
Form
of Regulation S Investment Letter
|
Exhibit J
|
Form
of Request for Release
|
Exhibit K
|
Contents
for Each Mortgage File
|
Exhibit L
|
Form
of Xxxxxxxx-Xxxxx Certification to be Provided by Master Servicer
(or
other Certification Party) signing Form 10-K
|
Exhibit M
|
List
of Servicing Agreements
|
Exhibit
N-1
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
Exhibit
N-2
|
[Reserved]
|
Exhibit
N-3
|
[Reserved]
|
Exhibit
O
|
Form
of Swap Agreement
|
Exhibit
P
|
Form
of Cap Agreement
|
Exhibit
Q
|
Form
of Amended And Restated Master Mortgage Loan Purchase and Interim
Servicing Agreement
|
Exhibit
R
|
[Reserved]
|
Exhibit
S
|
Servicing
Criteria Matrix
|
Exhibit
T
|
Transaction
Parties
|
Exhibit
U
|
Form
of Annual Compliance Certificate
|
Exhibit
V
|
Additional
Form 10-D Disclosure
|
Exhibit
W
|
Additional
Form 10-K Disclosure
|
Exhibit
X
|
Form
8-K Disclosure Information
|
Exhibit
Y
|
Additional
Disclosure Notification
|
-v-
THIS
POOLING AND SERVICING AGREEMENT, dated as of May 1, 2007, among HSI ASSET
SECURITIZATION CORPORATION, as depositor (the “Depositor”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”),
as
securities administrator (in such capacity, the “Securities
Administrator”)
and as
custodian (in such capacity, “the Custodian”),
OFFICETIGER GLOBAL REAL ESTATE SERVICES INC., as credit risk manager (the
“Credit
Risk Manager”),
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee
(the “Trustee”).
WITNESSETH:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Securities Administrator on behalf of the Trust Fund (exclusive of (i) the
Swap
Agreement, (ii) the Cap Agreement, (iii) the right to receive and the obligation
to pay Basis Risk Carryover Amounts, (iv) the Excess Reserve Fund Account,
(v)
the Supplemental Interest Trust and the Supplemental Interest Trust Account,
and
(vi) the obligations to pay Class I Shortfalls (collectively, the “Excluded
Trust Assets”))
shall
elect that the Trust Fund be treated for federal income tax purposes as
comprising three real estate mortgage investment conduits under Section 860D
of
the Code (each a “REMIC”
or,
in
the alternative, “REMIC 1,” REMIC 2” and “REMIC 3,” REMIC 3 also being referred
to herein 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 election.
Each
Certificate, other than the Class 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 X and Class P
Certificates, represents (i) the right to receive payments with respect to
any
Basis Risk Carryover Amounts and (ii) the obligation to pay Class I Shortfalls.
The Class R Certificate represents ownership of the sole Class of residual
interest in each of REMIC 1, REMIC 2 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 2, other than the Class LT2-R interest, and each such Lower
Tier Interest is hereby designated as a regular interest in REMIC 2 for purposes
of the REMIC Provisions. REMIC 2 shall hold as its assets the uncertificated
Lower Tier Interests in REMIC 1, other than the Class LT1-R interest, 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 and REMIC 2 and the Excluded Trust
Assets.
REMIC
1:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 1, each of which (other than the Class LT1-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC 1
(the
“REMIC 1 Regular Interests”):
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
LT1-A
|
(5)
|
(1)
|
LT1-F1
|
$
17,884,093.50
|
(2)
|
LT1-V1
|
$
17,884,093.50
|
(3)
|
LT1-F2
|
$
18,895,270.50
|
(2)
|
LT1-V2
|
$
18,895,270.50
|
(3)
|
LT1-F3
|
$
18,026,659.00
|
(2)
|
LT1-V3
|
$
18,026,659.00
|
(3)
|
LT1-F4
|
$
17,159,828.50
|
(2)
|
LT1-V4
|
$
17,159,828.50
|
(3)
|
LT1-F5
|
$
16,334,718.00
|
(2)
|
LT1-V5
|
$
16,334,718.00
|
(3)
|
LT1-F6
|
$
15,549,317.50
|
(2)
|
LT1-V6
|
$
15,549,317.50
|
(3)
|
LT1-F7
|
$
14,801,714.00
|
(2)
|
LT1-V7
|
$
14,801,714.00
|
(3)
|
LT1-F8
|
$
14,090,087.00
|
(2)
|
LT1-V8
|
$
14,090,087.00
|
(3)
|
LT1-F9
|
$
13,412,704.50
|
(2)
|
LT1-V9
|
$
13,412,704.50
|
(3)
|
LT1-F10
|
$
12,767,916.00
|
(2)
|
LT1-V10
|
$
12,767,916.00
|
(3)
|
LT1-F11
|
$
12,161,578.00
|
(2)
|
LT1-V11
|
$
12,161,578.00
|
(3)
|
LT1-F12
|
$
11,788,273.00
|
(2)
|
LT1-V12
|
$
11,788,273.00
|
(3)
|
LT1-F13
|
$
21,215,900.00
|
(2)
|
LT1-V13
|
$
21,215,900.00
|
(3)
|
LT1-F14
|
$
19,145,782.00
|
(2)
|
LT1-V14
|
$
19,145,782.00
|
(3)
|
LT1-F15
|
$
17,202,283.00
|
(2)
|
LT1-V15
|
$
17,202,283.00
|
(3)
|
LT1-F16
|
$
15,474,947.00
|
(2)
|
LT1-V16
|
$
15,474,947.00
|
(3)
|
LT1-F17
|
$
13,836,716.00
|
(2)
|
LT1-V17
|
$
13,836,716.00
|
(3)
|
LT1-F18
|
$
7,928,347.00
|
(2)
|
LT1-V18
|
$
7,928,347.00
|
(3)
|
LT1-F19
|
$
7,442,993.50
|
(2)
|
-2-
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
LT1-V19
|
$
7,442,993.50
|
(3)
|
LT1-F20
|
$
7,563,704.00
|
(2)
|
LT1-V20
|
$
7,563,704.00
|
(3)
|
LT1-F21
|
$
7,143,774.00
|
(2)
|
LT1-V21
|
$
7,143,774.00
|
(3)
|
LT1-F22
|
$
6,725,906.50
|
(2)
|
LT1-V22
|
$
6,725,906.50
|
(3)
|
LT1-F23
|
$
6,294,153.50
|
(2)
|
LT1-V23
|
$
6,294,153.50
|
(3)
|
LT1-F24
|
$
5,892,645.00
|
(2)
|
LT1-V24
|
$
5,892,645.00
|
(3)
|
LT1-F25
|
$
5,519,037.50
|
(2)
|
LT1-V25
|
$
5,519,037.50
|
(3)
|
LT1-F26
|
$
5,170,424.50
|
(2)
|
LT1-V26
|
$
5,170,424.50
|
(3)
|
LT1-F27
|
$
4,652,550.50
|
(2)
|
LT1-V27
|
$
4,652,550.50
|
(3)
|
LT1-F28
|
$
4,360,430.50
|
(2)
|
LT1-V28
|
$
4,360,430.50
|
(3)
|
LT1-F29
|
$
4,097,192.50
|
(2)
|
LT1-V29
|
$
4,097,192.50
|
(3)
|
LT1-F30
|
$
3,865,125.00
|
(2)
|
LT1-V30
|
$
3,865,125.00
|
(3)
|
LT1-F31
|
$
3,646,384.00
|
(2)
|
LT1-V31
|
$
3,646,384.00
|
(3)
|
LT1-F32
|
$
3,439,931.00
|
(2)
|
LT1-V32
|
$
3,439,931.00
|
(3)
|
LT1-F33
|
$
3,245,590.00
|
(2)
|
LT1-V33
|
$
3,245,590.00
|
(3)
|
LT1-F34
|
$
3,062,394.00
|
(2)
|
LT1-V34
|
$
3,062,394.00
|
(3)
|
LT1-F35
|
$
2,889,691.50
|
(2)
|
LT1-V35
|
$
2,889,691.50
|
(3)
|
LT1-F36
|
$
49,302,542.00
|
(2)
|
LT1-V36
|
$
49,302,542.00
|
(3)
|
LT1-R
|
(4)
|
(4)
|
___________________________
(1)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for the Class LT1-A Interest shall be the Net WAC Rate.
|
(2)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for each of these Lower Tier Interests shall be the
lesser
of (i) 10.30% and (ii) the product of (a) the Net WAC Rate and (b)
2.
|
-3-
(3)
|
For
any Distribution Date (and the related Interest 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)
10.30%.
|
(4)
|
The
Class LT1-R interest shall not have a principal amount and shall
not bear
interest. The Class LT1-R interest is hereby designated as the sole
class
of residual interest in REMIC 1.
|
(5)
This
interest shall have an initial principal balance equal to the excess of the
aggregate stated Principal Balance of the Mortgage Loans as of the Cut-off
Date
over the aggregate initial principal balance of each remaining interest in
REMIC
1.
On
each
Distribution Date, the Securities Administrator shall first pay or charge as
an
expense of REMIC 1 all expenses of the Trust Fund for such Distribution Date,
other than any Net Swap Payment or Swap Termination Payment required to be
made
from the Trust Fund.
On
each
Distribution Date the Securities Administrator shall distribute the 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 Securities Administrator shall distribute the Principal
Remittance Amount with respect to the Lower Tier Interests in REMIC 1, first
to
the Class LT1-A Interest until its principal balance is reduced to zero, and
then sequentially, to the other Lower Tier Interests in REMIC 1 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 1 in the same manner that principal distributions are
allocated.
On
each
Distribution Date, the Securities Administrator shall distribute the Prepayment
Charges collected during the preceding Prepayment Period to the Class LT1-F36
and Class LT1-V36 Lower Tier Interests, respectively.
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
interest) is hereby designated as a regular interest in REMIC 2 (the “REMIC 2
Regular Interests”):
REMIC
2
Lower
Tier
Class
Designation
|
REMIC
2
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
|
|||
Class
LT2-A-1
|
(1)
|
(4)
|
A-1
|
|||
Class
LT2-A-2
|
(1)
|
(4)
|
A-2
|
|||
Class
LT2-A-3
|
(1)
|
(4)
|
A-3
|
|||
Class
LT2-A-4
|
(1)
|
(4)
|
A-4
|
|||
Class
LT2-M1
|
(1)
|
(4)
|
M-1
|
|||
Class
LT2-M2
|
(1)
|
(4)
|
M-2
|
|||
Class
LT2-M3
|
(1)
|
(4)
|
M-3
|
|||
Class
LT2-M4
|
(1)
|
(4)
|
M-4
|
-4-
Class
LT2-M5
|
(1)
|
(4)
|
M-5
|
|||
Class
LT2-M6
|
(1)
|
(4)
|
M-6
|
|||
Class
LT2-M7
|
(1)
|
(4)
|
M-7
|
|||
Class
LT2-M8
|
(1)
|
(4)
|
M-8
|
|||
Class
LT2-M9
|
(1)
|
(4)
|
M-9
|
|||
Class
LT2-M10
|
(1)
|
(4)
|
M-10
|
|||
Class
LT2-Q
|
(1)
|
(5)
|
N/A
|
|||
Class
LT2-IO
|
(2)
|
(2)
|
N/A
|
|||
Class
LT2-R
|
(3)
|
(3)
|
R
|
___________________________
(1)
|
For
any Distribution Date (and the related Interest Accrual Period) the
interest rate for each of these Lower Tier Interests in REMIC 2 is
a per
annum rate equal to the weighted average of the interest rates on
the
Lower Tier Interests in REMIC 1 for such Distribution Date; provided,
however,
that for any Distribution Date on which the Class LT2-IO Interest
is
entitled to a portion of the interest accruals on a Lower Tier Interest
in
REMIC 1 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 1 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
(2)
|
The
Class LT2-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class LT2-IO shall be entitled to interest accrued
on
the Lower Tier Interest in REMIC 1 listed in 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 1 for such Distribution
Date
over (ii) Swap LIBOR for such Distribution
Date.
|
Distribution
Dates
|
REMIC
1
Class Designation
|
|
7
|
Class
LT1-F1
|
|
7-8
|
Class
LT1-F2
|
|
7-9
|
Class
LT1-F3
|
|
7-10
|
Class
LT1-F4
|
|
7-11
|
Class
LT1-F5
|
|
7-12
|
Class
LT1-F6
|
|
7-13
|
Class
LT1-F7
|
|
7-14
|
Class
LT1-F8
|
|
7-15
|
Class
LT1-F9
|
|
7-16
|
Class
LT1-F10
|
|
7-17
|
Class
LT1-F11
|
|
7-18
|
Class
LT1-F12
|
|
7-19
|
Class
LT1-F13
|
|
7-20
|
Class
LT1-F14
|
|
7-21
|
Class
LT1-F15
|
|
7-22
|
Class
LT1-F16
|
|
7-23
|
Class
LT1-F17
|
|
7-24
|
Class
LT1-F18
|
|
7-25
|
Class
LT1-F19
|
|
7-26
|
Class
LT1-F20
|
|
7-27
|
Class
LT1-F21
|
|
7-28
|
Class
LT1-F22
|
|
7-29
|
Class
LT1-F23
|
|
7-30
|
Class
LT1-F24
|
|
7-31
|
Class
LT1-F25
|
|
7-32
|
Class
LT1-F26
|
|
7-33
|
Class
LT1-F27
|
|
7-34
|
Class
LT1-F28
|
|
7-35
|
Class
LT1-F29
|
-5-
7-36
|
Class
LT1-F30
|
|
7-37
|
Class
LT1-F31
|
|
7-38
|
Class
LT1-F32
|
|
7-39
|
Class
LT1-F33
|
|
7-40
|
Class
LT1-F34
|
|
7-41
|
Class
LT1-F35
|
|
7-42
|
Class
LT1-F36
|
(3)
|
The
Class LT2-R interest is the sole class of residual interests in REMIC
2.
It does not have an interest rate or a principal balance.
|
(4)
|
This
Lower Tier Interest shall have an initial class principal amount
equal to
one-half of the initial Class Principal Amount of its Corresponding
Class
of Certificates.
|
(5)
|
This
Lower Tier Interest shall have an initial class principal amount
equal to
the excess of (i) the Pool Stated Principal Balance as of the Cut-off
Date, over (ii) the aggregate initial Class Principal Amount of each
other
regular interest in REMIC 2 (other than any interest-only Lower Tier
Interest).
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 2 based on the above-described interest rates; provided,
however,
that
interest that accrues on the Class LT2-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 LT2-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in REMIC 2 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 2 in the following order
of
priority:
(a) First,
to
the Class LT2-A-1, Class LT2-A-2, Class LT2-A-3, Class LT2-A-4,
Class LT2-M1, Class LT2-M2, Class LT2-M3, Class LT2-M4, Class LT2-M5, Class
LT2-M6, Class LT2-M7, Class LT2-M8, Class LT2-M9, and Class LT2-M10 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 LT2-Q Interests, any remaining amounts.
On
each
Distribution Date, the Securities Administrator shall be deemed to have
distributed the Prepayment Charges passed through with respect to the Class
LT1-F36 and Class LT1-V36 Lower Tier Interests in REMIC 1 on such Distribution
Date to the Class LT2-Q Interest.
Upper
Tier REMIC
The
Upper
Tier REMIC shall issue the following Classes of Upper Tier REMIC Regular
Interests and each such interest, other than the Class R Interest, is hereby
designated as a regular interest in the Upper Tier REMIC.
-6-
Upper
Tier REMIC
Upper
Tier REMIC
Class Designation
|
Upper
Tier REMIC Interest Rate and Corresponding
Class Interest
Rate
|
Initial
Upper Tier REMIC Principal Amount and Corresponding
Class
Certificate
Balance
|
Corresponding
Class of
Certificates
|
Class A-1
|
(1)
|
$495,395,000.00
|
Class A-1
|
Class A-2
|
(2)
|
$81,189,000.00
|
Class A-2
|
Class A-3
|
(3)
|
$152,344,000.00
|
Class A-3
|
Class A-4
|
(4)
|
$27,032,000.00
|
Class A-4
|
Class M-1
|
(5)
|
$44,347,000.00
|
Class M-1
|
Class M-2
|
(5)
|
$41,253,000.00
|
Class M-2
|
Class M-3
|
(5)
|
$25,267,000.00
|
Class M-3
|
Class M-4
|
(5)
|
$23,205,000.00
|
Class M-4
|
Class M-5
|
(5)
|
$21,142,000.00
|
Class M-5
|
Class M-6
|
(5)
|
$18,564,000.00
|
Class M-6
|
Class M-7
|
(5)
|
$18,048,000.00
|
Class M-7
|
Class M-8
|
(5)
|
$14,439,000.00
|
Class M-8
|
Class M-9
|
(5)
|
$14,438,000.00
|
Class M-9
|
Class M-10
|
(5)
|
$14,954,000.00
|
Class M-10
|
Class X
|
(6)
|
(6)
|
Class X
|
Class R
|
(7)
|
(7)
|
Class R
|
Class P
|
(8)
|
(8)
|
Class
P
|
(1)
|
The
Class A-1 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Available Funds Cap or (b) after
the Optional Termination Date, the lesser of (i) LIBOR plus the
applicable Interest Margin and (ii) the Available Funds Cap. For
purposes of the REMIC Provisions, the reference to “Available Funds Cap”
in clause (ii) of the preceding sentence shall be deemed a reference
to
the REMIC 2 Net Funds Cap; therefore, on any Distribution Date on
which
the Interest Rate for the Class A-1 Certificates exceeds the REMIC
2 Net
Funds Cap, interest accruals based on such excess shall be treated
as
having been paid from the Excess Reserve Fund Account or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Interest Rate on the Class A-1 Certificates is based on the Available
Funds Cap, the amount of interest that would have accrued on the
Class A-1
Certificates if the REMIC 2 Net Funds Cap were substituted for the
Available Funds Cap shall be treated as having been paid by the Class
A-1
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
(2)
|
The
Class A-2 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Available Funds Cap or (b) after
the Optional Termination Date, the lesser of (i) LIBOR plus the
applicable Interest Margin and (ii) the Available Funds Cap. For
purposes of the REMIC Provisions, the reference to “Available Funds Cap”
in clause (ii) of the preceding sentence shall be deemed a reference
to
the REMIC 2 Net Funds Cap; therefore, on any Distribution Date on
which
the Interest Rate for the Class A-2 Certificates exceeds the REMIC
2 Net
Funds Cap, interest accruals based on such excess shall be treated
as
having been paid from the Excess Reserve Fund Account or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Interest Rate on the Class A-2 Certificates is based on the Available
Funds Cap, the amount of interest that would have accrued on the
Class A-2
Certificates if the REMIC 2 Net Funds Cap were substituted for the
Available Funds Cap shall be treated as having been paid by the Class
A-2
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
-7-
(3)
|
The
Class A-3 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Available Funds Cap or (b) after
the Optional Termination Date, the lesser of (i) LIBOR plus the
applicable Interest Margin and (ii) the Available Funds Cap. For
purposes of the REMIC Provisions, the reference to “Available Funds Cap”
in clause (ii) of the preceding sentence shall be deemed a reference
to
the REMIC 2 Net Funds Cap; therefore, on any Distribution Date on
which
the Interest Rate for the Class A-3 Certificates exceeds the REMIC
2 Net
Funds Cap, interest accruals based on such excess shall be treated
as
having been paid from the Excess Reserve Fund Account or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Interest Rate on the Class A-3 Certificates is based on the Available
Funds Cap, the amount of interest that would have accrued on the
Class A-3
Certificates if the REMIC 2 Net Funds Cap were substituted for the
Available Funds Cap shall be treated as having been paid by the Class
A-3
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
(4)
|
The
Class A-4 Interest will bear interest during each Interest Accrual
Period
at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus the applicable
Interest Margin and (ii) the Available Funds Cap or (b) after
the Optional Termination Date, the lesser of (i) LIBOR plus the
applicable Interest Margin and (ii) the Available Funds Cap. For
purposes of the REMIC Provisions, the reference to “Available Funds Cap”
in clause (ii) of the preceding sentence shall be deemed a reference
to
the REMIC 2 Net Funds Cap; therefore, on any Distribution Date on
which
the Interest Rate for the Class A-4 Certificates exceeds the REMIC
2 Net
Funds Cap, interest accruals based on such excess shall be treated
as
having been paid from the Excess Reserve Fund Account or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Interest Rate on the Class A-4 Certificates is based on the Available
Funds Cap, the amount of interest that would have accrued on the
Class A-4
Certificates if the REMIC 2 Net Funds Cap were substituted for the
Available Funds Cap shall be treated as having been paid by the Class
A-4
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 8.11
hereof.
|
(5)
|
The
Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9 and Class M-10 Interests will bear interest during
each Interest Accrual Period at a per annum rate equal to (a) on or
prior to the Optional Termination Date, the lesser of (i) LIBOR plus
the applicable Interest Margin and (ii) the Available Funds Cap or
(b) after the Optional Termination Date, the lesser of (i) LIBOR
plus the applicable Interest Margin and (ii) the Available Funds Cap.
For purposes of the REMIC Provisions, the reference to Available
Funds Cap
in clause (ii) of the preceding sentence shall be deemed to be a
reference
to the REMIC 2 Net Funds Cap; therefore, on any Distribution Date
on which
the Interest Rate for the Class X-0, X-0, X-0, X-0, X-0, M-6, M-7,
M-8,
M-9 and M-10 Certificates, as applicable, exceeds the REMIC 2 Net
Funds
Cap, interest accruals based on such excess shall be treated as having
been paid from the Excess Reserve Fund Account or the Supplemental
Interest Trust, as applicable; on any Distribution Date on which
the
Interest Rate on the Class X-0, X-0, X-0, X-0, X-0, M-6, M-7, M-8,
M-9 and
M-10 Certificates, as applicable, is based on the Available Funds
Cap, the
amount of interest that would have accrued on each such Class of
Certificates if the REMIC 2 Net Funds Cap were substituted for the
Available Funds Cap shall be treated as having been paid by the Class
X-0,
X-0, X-0, X-0, X-0, M-6, M-7, M-8, M-9 and M-10 Certificateholders,
as
applicable, to the Supplemental Interest Trust, all pursuant to and
as
further provided in Section 8.11 hereof.
|
(6)
|
For
purposes of the REMIC Provisions, the Class X Certificate shall reflect
beneficial ownership of the Class X Interest in the Upper Tier REMIC.
The
Class X Interest shall have an initial principal balance of $39,706,423.19
(initial overcollateralization of $39,706,523.19 less $100.00 attributable
to the Class P Principal Amount), and the right to receive distributions
of such amount represents a regular interest in the Upper Tier REMIC.
The
Class X Interest 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 principal amount of the Lower Tier Interests in
REMIC 2,
and, for each Distribution Date (and the related Interest 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 2 (other than any interest-only
regular interest) minus (b) the Credit Risk Manager’s Fee over (ii) the
Adjusted Lower Tier WAC. The second notional component represents
the
right to receive all distributions in respect of the Class LT2-IO
interest
in REMIC 2 (the “LT3-I” interest). In addition, for purposes of the REMIC
Provisions, the Class X Certificate shall represent beneficial ownership
of (i) the Excess Reserve Fund Account; (ii) the Supplemental Interest
Trust, including the Swap Agreement, Swap Account, Cap Agreement,
and Cap
Account, and (iii) an interest in the notional principal contracts
described in Section 8.11
hereof.
|
-8-
(7)
|
The
Class R Interest is the sole Class of residual interest in the Upper
Tier REMIC. The Class R Interest is issued without a principal amount
does not bear a stated Interest Rate. The Class R Certificate will
be
issued as a single certificate evidencing the initial Percentage
Interest
of such Class, and shall represent ownership of each of the Class
R, Class
LT1-R and Class LT2-R Interests.
|
(8)
|
The
Class P Certificate shall not bear interest at a stated Interest
Rate.
Prepayment Charges paid with respect to the Mortgage Loans shall
be paid
to the Class P Certificateholders as provided in Section 4.02(b).
For
purposes of the REMIC Provisions, the Class P Certificate shall represent
a regular interest in the Upper Tier REMIC. The Class P Certificate
will
have a Class P Principal Amount of
$100.
|
The
minimum denomination for each Class of Certificates, other than the
Class P, Class R and the Class X Certificates, will be $25,000 of
Certificate Balance ($100,000 with respect to initial investors resident in
a
Member State of the European Economic Area subject to the EU Prospectus
Directive 2003/71/EC) with integral multiples of $1 in excess thereof, except
that one Certificate in each Class may be issued in a different amount. The
minimum denomination for each of the Class P and Class X Certificates
will be a 10.00% Percentage Interest in such Class, and the minimum denomination
for the Class R Certificates shall be 100% Percentage Interest in such
Class.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
Class A
Certificates
|
Class
A-1, Class A-2, Class A-3 and Class A-4
Certificates.
|
Class M
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates.
|
ERISA-Restricted
Certificates
|
Any
Class P, Class X and Class R Certificates and any Certificate with
a
rating which falls below the lowest applicable permitted rating under
the
Underwriters’ Exemption.
|
ERISA-Restricted
Trust
Certificates
|
Any
Offered Certificate prior to the termination of the Cap Agreement
and the
Swap Agreement.
|
LIBOR
Certificates
|
Collectively,
the Class A Certificates and the Class M
Certificates.
|
Non-Delay
Certificates
|
The
Class A Certificates, the Class M Certificates and the Class X
Certificates.
|
-9-
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
Physical
Certificates
|
Class P,
Class X and Class R
Certificates.
|
Private
Certificates
|
Class
M-10, Class P, Class X and Class R
Certificates.
|
Rating
Agencies
|
Fitch,
Xxxxx’x and Standard &
Poor’s.
|
Regular
Certificates
|
All
Classes of Certificates other than the Class R
Certificates.
|
Residual
Certificates
|
Class R
Certificates.
|
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
10-K
Filing Deadline: As defined in Section 8.12(a)(ii).
Account:
Any of
the Collection Accounts, the Distribution Account and any Escrow Account, with
respect to the Supplemental Interest Trust, the Excess Reserve Fund Account
and
the Supplemental Interest Trust Account. Each Account shall be an Eligible
Account.
Additional
Disclosure Notification:
The
form of notice set forth on Exhibit Y.
Additional
Form 10-D Disclosure:
As
defined in Section 8.12(a)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 8.12(a)(ii).
Additional
Termination Event:
As
defined in the Cap Agreement or the Swap Agreement, as applicable.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Rate payable
in
respect thereto.
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Interest 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 XX0-X-0, XX0-X-0, XX0-X-0, XX0-X-0, XX0-X-0,
LT2-M-2, LT2-M-3, LT2-M-4, LT2-M-5, LT2-M-6, LT2-M-7, LT2-M-8, LT2-M-9, LT2-M-10
and LT2-Q Interests, weighted in proportion to their Class Certificate Balances
as of the beginning of the related Interest Accrual Period and computed by
subjecting the rate on the Class LT2-Q Interest to a cap of 0.00%, and by
subjecting the rate on each of the Class XX0-X-0, XX0-X-0, XX0-X-0, XX0-X-0,
XX0-X-0, LT2-M-2, LT2-M-3, LT2-M-4, LT2-M-5, LT2-M-6, LT2-M-7, LT2-M-8, LT2-M-9
and LT2-M-10 Interests to a cap that corresponds to the Interest Rate
(determined by substituting the REMIC 2 Net Funds Cap for the Available Funds
Cap) for the Corresponding Class of Certificates; provided,
however,
that
for each Class of LIBOR Certificates, the Certificate Interest Rate shall be
multiplied by the quotient of (a) the actual number of days in the Interest
Accrual Period, divided by (b) 30.
-10-
Advance:
Any
P&I Advance or Servicing Advance.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Agreement:
This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
Amounts
Held for Future Distribution:
As to
the Certificates on any Distribution Date, the aggregate amount held in the
Collection Accounts of the Servicers at the close of business on the related
Determination Date on account of (i) Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and Subsequent Recoveries
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of
the related Due Period.
Applied
Realized Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which the aggregate
Class Certificate Balance of the LIBOR Certificates after distributions of
principal on such Certificates on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution
Date.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form (other than the assignee’s name and recording information not
yet returned from the recording office), reflecting the sale of the Mortgage
to
the Trustee.
Available
Funds:
With
respect to any Distribution Date and the Mortgage Loans to the extent received
by the Master Servicer (x) the sum of (i) all scheduled installments
of interest (net of the related Expense Fees) and principal due on the Due
Date
on such Mortgage Loans in the related Due Period and received by the Servicers
on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries received
by
the Servicers during the related Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments
on the Mortgage Loans received by the Servicers during the related Prepayment
Period together with all Compensating Interest paid by the Servicers in
connection therewith (excluding any Prepayment Charges); (iv) all
Substitution Adjustment Amounts with respect to the substitutions of Mortgage
Loans that occur on or prior to the related Determination Date; (v) all
amounts received with respect to such Distribution Date as the Repurchase Price
in respect of a Mortgage Loan repurchased by the Sponsor on or prior to the
related Determination Date; and (vi) the proceeds with respect to the
termination of the Trust Fund pursuant to clause (a) of
Section 11.01; reduced by (y) amounts in reimbursement for Advances
previously made with respect to the Mortgage Loans and other amounts as to
which
a Servicer, the Depositor, the Master Servicer, the Securities Administrator,
the Credit Risk Manager or the Trustee are entitled to be paid or reimbursed
pursuant to the Servicing Agreements or this Agreement.
-11-
Available
Funds Cap:
With
respect to the Mortgage Loans as of any Distribution Date, the per annum rate
(subject to adjustment based on the actual number of days elapsed in the related
Interest Accrual Period) equal to (x) the weighted average of the Expense
Adjusted Mortgage Rate for each Mortgage Loan then in effect at the beginning
of
the related Due Period (not including for this purpose any Mortgage Loans for
which Principal Prepayments in Full have been received and distributed in the
month prior to that Distribution Date) minus
(y) a
percentage equal to the product of (i) a fraction, the numerator of which is
equal to the portion of the Net Derivative Payment or Swap Termination Payment
(other than a Swap Termination Payment resulting from a Derivative Counterparty
Trigger Event) made to the Swap Counterparty with respect to such Due Period,
and the denominator of which is equal to the aggregate Stated Principal Balance
of the Mortgage Loans as of the beginning of the related Due Period and (ii)
12.
Back-up
Xxxxxxxx-Xxxxx Certification:
As
defined in Section 3.05.
Basic
Principal Payment Amount:
With
respect to any Distribution Date, the excess of (i) the Principal
Remittance Amount for such Distribution Date over (ii) the Excess
Overcollateralization Amount, if any, for such Distribution Date.
Basis
Risk Carryover Amount:
With
respect to each Class of LIBOR Certificates, as of any Distribution Date,
the sum of (A) if on such Distribution Date the Interest Rate for any
Class of LIBOR Certificates is based upon the Available Funds Cap, the
excess of (i) the amount of interest such Class of Certificates would
otherwise be entitled to receive on such Distribution Date had such Interest
Rate been calculated as the sum of LIBOR and the applicable Interest Margin
on
such Class of Certificates for such Distribution Date, over (ii) the
amount of interest payable on such Class of Certificates based on the
Available Funds Cap for such Distribution Date and (B) the portion of any
such excess described in clause (A) for such Class of Certificates
from all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal the applicable Interest Rate for each such Class of
Certificates for such Distribution Date.
Basis
Risk Payment:
For any
Distribution Date, an amount equal to the lesser of (i) the aggregate of
the Basis Risk Carryover Amounts of the LIBOR Certificates for such Distribution
Date and (ii) the Class X Distributable Amount (prior to any reduction
for Basis Risk Payments).
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
-12-
Business
Day:
Any day
other than (i) Saturday or Sunday, or (ii) a day on which banking and
savings and loan institutions, in (a) the States of New York, California,
Maryland or Minnesota, (b) the Commonwealth of Pennsylvania or any other
State in which a Servicer’s servicing operations are located, or (c) any
State in which the Corporate Trust Office is located, are authorized or
obligated by law or executive order to be closed.
Cap
Account:
The
sub-account of the Supplemental Interest Trust Account created pursuant to
Section 4.06(a).
Cap
Agreement:
The
interest rate cap agreement entered into by the Supplemental Interest Trust
and
the Cap Counterparty, dated June 5, 2007, which agreement provides for the
monthly payment specified to the Supplemental Interest Trust Trustee (for the
benefit of Certificateholders) commencing with the Distribution Date in July
2007 and ending on the Distribution Date in June 2014, by the Cap Counterparty,
but subject to the conditions set forth therein, together with any schedule,
confirmations or other agreements relating thereto, attached as Exhibit
P.
Cap
Amount:
With
respect to each Distribution Date, the amount of any Cap Payment deposited
into
the Cap Account.
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Cap Agreement, and
any
successor in interest or its assigns. Initially, the Cap Counterparty shall
be
ABN AMRO Bank, N.V.
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
Cap
Agreement.
Cap
Payment Date:
For as
long as the Cap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Cap
Replacement Receipts:
As
defined in Section 4.08(b)(i).
Cap
Replacement Receipts Account:
As
defined in Section 4.08(b)(i).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Cap Agreement,
the payment required to be made by the Cap Counterparty to the Supplemental
Interest Trust pursuant to the terms of the Cap Agreement and any unpaid amounts
due on previous Cap Payment Dates and accrued interest thereon as provided
in
the Cap Agreement, as calculated by the Cap Counterparty and furnished to the
Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 4.08(b)(i).
Cap
Termination Receipts Account:
As
defined in Section 4.08(b)(i).
Certificate:
Any one
of the Certificates executed and authenticated by the Securities Administrator
in substantially the forms attached hereto as exhibits.
-13-
Certificate
Balance:
With
respect to any Certificate, other than a Class X, Class P or
Class R Certificate, at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal
to
the Denomination thereof minus all distributions of principal previously made
with respect thereto and in the case of any Class M Certificates, reduced by
any
Applied Realized Loss Amounts allocated to such Class of Certificates
pursuant to Section 4.05; provided,
however,
that
immediately following the Distribution Date on which a Subsequent Recovery
is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of any Subsequent
Recovery distributed on such Distribution Date (up to the amount of Unpaid
Realized Loss Amount for such Class or Classes for such Distribution Date).
The Class P Certificates are issued with an initial Class P Principal
Amount of $100. The Class X and Class R Certificates have no
Certificate Balance.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
Certificateholder
or
Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
Affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect such consent has been obtained; provided,
however,
that if
any such Person (including the Depositor) owns 100.00% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires
the
consent of the Holders of Certificates of a particular Class as a condition
to the taking of any action hereunder. The Securities Administrator is entitled
to rely conclusively on a certification of the Depositor or any Affiliate of
the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification
Parties:
As
defined in Section 3.05.
Certifying
Person:
As
defined in Section 3.05.
Class:
All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class A-1
Certificates:
All
Certificates bearing the Class designation of “Class A-1”.
Class A-2
Certificates:
All
Certificates bearing the Class designation of “Class A-2”.
Class A-3
Certificates:
All
Certificates bearing the Class designation of “Class A-3”.
-14-
Class A-4
Certificates:
All
Certificates bearing the Class designation of “Class A-4”.
Class A
Certificates:
As
specified in the Preliminary Statement.
Class Certificate
Balance:
With
respect to any Class of LIBOR Certificates and as to any date of determination,
the aggregate of the Certificate Balances of all Certificates of such
Class as of such date. With respect to the Class X, Class P and Class R
Certificates, zero. With respect to any Lower Tier Interest and as to any date
of determination, the initial Class Principal Balance as shown or described
in
the table set forth in the Preliminary Statement to this Agreement for the
issuing REMIC, as reduced by any principal distributed with respect to such
Lower Tier Interest and Realized Losses allocated to such Lower Tier
Interest.
Class
I Shortfalls: As
defined in Section 8.11 hereof. For
purposes of clarity, the Class I Shortfall for any Distribution Date shall
equal
the amount payable to the Derivative Counterparty on such Distribution Date
in
excess of the amount payable with respect to the Class LT3-I interest in the
Upper Tier REMIC on such Distribution Date, all as further provided in Section
8.11 hereof.
Class M
Certificates:
As
specified in the Preliminary Statement.
Class M
Principal Payment Amount:
With
respect to any Distribution Date and any Class of Class M
Certificates, the lesser of (i) the excess of (a) the Principal
Payment Amount over (b) the aggregate amount distributed on that
Distribution Date as principal to all Classes of Certificates more senior than
that Class of Class M Certificates and (ii) the excess of (a) the sum
of the aggregate Class Certificate Balances of all Class of
Certificates more senior than that Class of Class M Certificates
(after giving effect to all amounts distributed on that Distribution Date to
those Classes of more senior certificates and the Class Certificate Balance
of that Class of Class M Certificates immediately prior to that
Distribution Date over (b) the lesser of:
(x) the
percentage set forth in the table below for the applicable Class of
Class M Certificates multiplied by the aggregate Stated Principal Balance
of the Mortgage Loans for that Distribution Date:
Class
|
Percentage
|
|
M-1
|
55.20%
|
|
M-2
|
63.20%
|
|
M-3
|
68.10%
|
|
M-4
|
72.60%
|
|
M-5
|
76.70%
|
|
M-6
|
80.30%
|
|
M-7
|
83.80%
|
|
M-8
|
86.60%
|
|
M-9
|
89.40%
|
|
M-10
|
92.30%
|
-15-
and
(y) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for that Distribution Date over 0.50% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date, until the Class Certificate
Balance of that Class of Class M Certificates has been reduced to
zero.
Class M-1
Certificates:
All
Certificates bearing the Class designation of “Class M-1”.
Class M-2
Certificates:
All
Certificates bearing the Class designation of “Class M-2”.
Class M-3
Certificates:
All
Certificates bearing the Class designation of “Class M-3”.
Class M-4
Certificates:
All
Certificates bearing the Class designation of “Class M-4”.
Class M-5
Certificates:
All
Certificates bearing the Class designation of “Class M-5”.
Class M-6
Certificates:
All
Certificates bearing the Class designation of “Class M-6”.
Class M-7
Certificates:
All
Certificates bearing the Class designation of “Class M-7”.
Class M-8
Certificates:
All
Certificates bearing the Class designation of “Class M-8”.
Class M-9
Certificates:
All
Certificates bearing the Class designation of “Class M-9”.
Class M-10
Certificates:
All
Certificates bearing the Class designation of “Class M-10”.
Class Notional
Balance:
Not
applicable.
Class P
Certificates:
All
Certificates bearing the Class designation of “Class P”.
Class P
Principal Amount:
As of
the Closing Date, $100.00.
Class R
Certificates:
All
Certificates bearing the Class designation of “Class R”.
Class X
Certificates:
All
Certificates bearing the Class designation of “Class X”.
-16-
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 $39,706,523.19 less $100
(which $100 shall be allocated to the Class P Certificates) to the extent such
amount has not been distributed on an earlier Distribution Date as part of
the
Overcollateralization Reduction Amount.
Class
X Notional Balance:
With respect to
any Distribution Date (and the related Interest Accrual Period) the aggregate
principal balance of the regular interests in REMIC 2 as specified in the
Preliminary Statement hereto.
Closing
Date:
June 5,
2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collateral
Account:
The
account maintained by the Supplemental Interest Trust Trustee in accordance
with
the provisions of Section 4.06(b).
Collection
Account:
With
respect to each Servicer, the account defined as a “Custodial Account” in the
related Servicing Agreement
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest:
For any
Distribution Date, the lesser of (a) the amount, if any, by which the
Prepayment Interest Shortfall, if any, for such Distribution Date, with respect
to all voluntary Principal Prepayments (excluding any payments made upon
liquidation of any Mortgage Loan) exceeds all Prepayment Interest Excesses
for
such Distribution Date, and (b) the aggregate amount of the Servicing Fee
actually retained by or paid to the applicable Servicer for such Distribution
Date.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation.
Corporate
Trust Office:
With
respect to the Securities Administrator, (i) for transfer, presentation or
surrender of Certificates, the office at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services -HASCO 2007-NC1, and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager - HASCO 2007-NC1
or at
such other address as the Securities Administrator may designate from time
to
time by notice to the Certificateholders, the Depositor, the Master Servicer
and
the Trustee. With respect to the Trustee, the designated office of the Trustee
in the State of California at which any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration -
HB07C1, facsimile number (000) 000-0000, and its telephone number is (000)
000-0000 and which is also the address to which notices to and correspondence
with the Trustee under this Agreement should be directed.
-17-
Corresponding
Class:
As set
forth in first table under the heading REMIC 2 and in the first table under
the
heading Upper Tier REMIC in the Preliminary Statement.
Countrywide
Servicing:
Countywide Home Loans Servicing LP.
Credit
Enhancement Percentage:
With
respect to any Distribution Date, the percentage obtained by dividing
(x) the sum of (i) the aggregate Class Certificate Balance of the
Class M Certificates and (ii) the Overcollateralization Amount
(assuming the Overcollateralization Amount is not less than zero and in each
case after taking into account the distributions of principal for such
Distribution Date assuming no Trigger Event has occurred) by (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date.
Credit
Risk Manager:
OfficeTiger Global Real Estate Services Inc., and its successors and assigns.
Credit
Risk Management Agreement:
Each of
the loan performance management agreements, dated as of the Closing Date,
entered into by (i) Xxxxx Fargo Bank, N.A., as Servicer, and the Credit Risk
Manager, and (ii) the Master Servicer and the Credit Risk Manager.
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
Stated Principal Balance of such Mortgage Loan as of the first day of the
related Due Period; provided, however, that such amount shall not be less than
$1,500.00 on each Distribution Date.
Credit
Risk Manager’s Fee Rate:
0.014% per
annum.
Credit
Support Annex:
The
credit support annex to the Swap Agreement and the Cap Agreement dated as of
June 5, 2007, between the Supplemental Interest Trust Trustee, on behalf of
the
Supplemental Interest Trust, the Swap Counterparty and Cap
Counterparty.
Cumulative
Loss Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the aggregate amount of Realized Losses incurred from
the
Cut-off Date to the last day of the calendar month preceding the month in which
such Distribution Date occurs and the denominator of which is the Cut-off Date
Pool Principal Balance of the Mortgage Loans.
Cumulative
Loss Trigger Event:
If,
with respect to any Distribution Date, the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since
the Cut-off Date through the last day of the related Prepayment Period, divided
by (y) the Cut-off Date Pool Principal Balance, exceeds the applicable loss
percentages set forth below with respect to such Distribution
Date:
-18-
Distribution
Date Occurring In:
|
Loss
Percentage:
|
|||
June
2009 through May 2010
|
1.80%
for the first month, plus an additional 1/12th of 2.25% for each
month
thereafter
|
|||
June
2010 through May 2011
|
4.05%
for the first month, plus an additional 1/12th of 2.30% for each
month
thereafter
|
|||
June
2011 through May 2012
|
6.35%
for the first month, plus an additional 1/12th of 1.85% for each
month
thereafter
|
|||
June
2012 through May 2013
|
8.20%
for the first month, plus an additional 1/12th of 0.95% for each
month
thereafter
|
|||
June
2013 through May 2014
|
9.15%
for the first month, plus an additional 1/12th of 0.05% for each
month
thereafter
|
|||
June
2014 and thereafter
|
9.20%
|
Custodial
File:
The
meaning assigned to such term in Section 2.01(a).
Custodian:
Initially, Xxxxx Fargo, or any successor custodian appointed
hereunder.
Cut-off
Date:
May 1,
2007.
Cut-off
Date Pool Principal Balance:
The
aggregate Stated Principal Balances of all Mortgage Loans as of the Cut-off
Date.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the Stated Principal Balance thereof as of the close of
business on the Cut-off Date.
Data
Tape Information:
With
respect to each Mortgage Loan, the same information (provided as of the Cut-off
Date) included in the data fields specified under the definition of “Mortgage
Loan Schedule” in the Master MLPISA, with such additions and modifications as
agreed upon by the Mortgage Loan Seller and the Depositor. A copy of the Master
MLPISA is attached at Exhibit Q hereto.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the United States Bankruptcy Code in the Scheduled Payment
for such Mortgage Loan which became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any reduction that results
in
a permanent forgiveness of principal.
Defaulting
Party:
As
defined in the Swap Agreement or Cap Agreement, as applicable.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the United States Bankruptcy Code.
-19-
Definitive
Certificates:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 5.02(e).
Deleted
Mortgage Loan:
A
Mortgage Loan repurchased by the Sponsor and removed from the Trust
Fund.
Delinquency
Rate:
For any
calendar month, a fraction, expressed as a percentage, the numerator of which
is
the aggregate Stated Principal Balance of 60+ Day Delinquent Mortgage Loans
(including Mortgage Loans that have been modified within the last 12 months)
as
of the close of business on the last day of such month (not including those
Mortgage Loans that are liquidated as of the end of the related Prepayment
Period), and the denominator of which is the aggregate Stated Principal Balance
of the Mortgage Loans as of the close of business on the last day of such month
(not including those Mortgage Loans that are liquidated as of the end of the
related Prepayment Period).
Delinquency
Trigger Event:
With
respect to any Distribution Date on or after the Stepdown Date, the
circumstances in which the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding calendar month exceeds the applicable
percentages of the Credit Enhancement Percentage for the prior Distribution
Date
(for the purpose of this definition, the Credit Enhancement Percentage for
each
class of the Class M Certificates will be calculated by dividing (x) the sum
of
(i) the aggregate Class Certificate Balance of the Class M Certificates with
a
lower payment priority than that Class and (ii) the Overcollateralization Amount
(in each case after taking into account distributions of principal for that
Distribution Date) by (y) the aggregate Stated Principal Balance of the Mortgage
Loans for that Distribution Date) as
set
forth below for the most senior Class of LIBOR Certificates then
outstanding:
Class
|
Percentage
|
|
A
|
25.65%
|
|
M-1
|
30.57%
|
|
M-2
|
37.22%
|
|
M-3
|
42.94%
|
|
M-4
|
49.99%
|
|
M-5
|
58.79%
|
|
M-6
|
69.53%
|
|
M-7
|
84.55%
|
|
M-8
|
102.22%
|
|
M-9
|
129.22%
|
|
M-10
|
177.88%
|
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof.
-20-
Depositor:
HSI
Asset Securitization Corporation, a Delaware corporation, and its successors
in
interest.
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Institution:
Any
depository institution or trust company, including the Trustee and the
Securities Administrator, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to
supervision and examination by federal or state banking authorities and
(c) has outstanding unsecured commercial paper or other short-term
unsecured debt obligations that are rated P-1 by Xxxxx’x, F1+ by Fitch and A-1
by Standard & Poor’s.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Derivative
Agreement:
The
Swap Agreement and the Cap Agreement.
Derivative
Counterparty:
Collectively, the Cap Counterparty and the Swap Counterparty.
Derivative
Payment Date:
For so
long as either the Cap Agreement or the Swap Agreement is in effect, the
Business Day preceding each Distribution Date.
Determination
Date:
means,
for each Remittance Date (i) with respect to Xxxxx Fargo, as Servicer, the
business day immediately preceding such Remittance Date, and (ii) with respect
to Countrywide Servicing, the 15th
day of
the calendar month in which such Remittance Date occurs, or if that day is
not a
business day, the immediately succeeding business day.
Disqualified
Non-U.S. Person:
With
respect to a Class R Certificate, any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds the Class R Certificate in
connection with the conduct of a trade or business within the United States
and
has furnished the transferor and the Securities Administrator with an effective
IRS Form W-8ECI or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Securities Administrator an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax
purposes.
Distribution
Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 3.01(c) in the name of the Securities Administrator as
paying agent for the benefit of the Trustee and the Certificateholders and
designated “Xxxxx Fargo Bank, N.A. as securities administrator in trust for
registered holders of HSI Asset Securitization Corporation Trust 2007-NC1
Mortgage Pass-Through Certificates, Series 2007-NC1”. Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement.
-21-
Distribution
Account Deposit Date:
As to
any Distribution Date, 12:00 noon New York City time on the third Business
Day
immediately preceding such Distribution Date.
Distribution
Date:
The
25th day of each calendar month, or if such day is not a Business Day, the
next
succeeding Business Day, commencing in June 2007.
Document
Certification and Exception Report:
The
form of report attached to Exhibit F hereto.
Due
Date:
The day
of the month on which the Scheduled Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
calendar month preceding the month in which such Distribution Date occurs and
ending on the first day of the calendar month in which such Distribution Date
occurs.
XXXXX:
The
Commission’s Electronic Data Gathering and Retrieval System.
Eligible
Account:
Either
(i) an account maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution, (ii) an account maintained with the corporate trust department
of a
federal depository institution or state-chartered depository institution subject
to regulations regarding fiduciary funds on deposit similar to Title 12 of
the
U.S. Code of Federal Regulation Section 9.10(b), which, in either case, has
corporate trust powers and is acting in its fiduciary capacity or (iii) any
other account acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Securities Administrator.
Eligible
Institution:
A
federal or state-chartered depository institution or trust company the
commercial paper, short-term debt obligations, or other short-term deposits
of
which are rated at least “A-1+” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days (or at least
“A-2” if the amounts on deposit are to be held in the account for no more than
30 days), “P-1” by Moody’s and “F1+” by Fitch (or a comparable rating if another
Rating Agency is specified by the Depositor by written notice to each of the
Servicers and the Securities Administrator) or long-term unsecured debt
obligations are rated at least “AA-” by Standard & Poor’s if the amounts on
deposit are to be held in the account for no more than 365 days.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of Prohibited Transaction Exemption (“PTE”) 96-84,
61 Fed. Reg. 58234 (1996), as amended by XXX 00-00, 00 Xxx. Xxx. 00000
(1997), PTE 2000-58, 65 Fed. Reg. 67765 (2000) and PTE 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of
Labor.
-22-
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
ERISA-Restricted
Trust Certificate:
As
specified in the Preliminary Statement.
Escrow
Account:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Event
of Default:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Excess
Overcollateralization Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the
Overcollateralization Amount (for purposes of this calculation only, assuming
100% of the Principal Remittance Amount is applied as a principal payment to
the
LIBOR Certificates on such Distribution Date, but before giving effect to any
other distributions on the LIBOR Certificates in reduction of their respective
Class Certificate Balances on such Distribution Date) on such Distribution
Date
over (b) the Overcollateralization Target Amount for such Distribution
Date.
Excess
Reserve Fund Account:
The
separate Eligible Account created and maintained by the Securities Administrator
under the Supplemental Interest Trust pursuant to Sections 3.01(a) and
3.01(b) in the name of the Securities Administrator as paying agent for the
benefit of the LIBOR Certificateholders and the Class X Certificateholders
and
designated “Xxxxx Fargo Bank, N.A. as securities administrator in trust for
registered holders of HSI Asset Securitization Corporation Trust 2007-NC1,
Mortgage Pass-Through Certificates, Series 2007-NC1”. Funds in the Excess
Reserve Fund Account shall be held in trust for such Certificateholders for
the
uses and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested. The Excess Reserve Fund Account
shall be considered part of the Supplemental Interest Trust but not part of
any
REMIC.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Excluded
Trust Assets:
As
defined in the Preliminary Statement.
Expense
Adjusted Mortgage Rate:
With
respect to any Distribution Date and as to each Mortgage Loan, the per annum
rate equal to the Mortgage Rate as of the first day of the related Due Period
less the Expense Fee Rate.
Expense
Fees:
As to
each Mortgage Loan and any Distribution Date, the Servicing Fee.
Expense
Fee Rate:
As to
each Mortgage Loan, a per annum rate equal to the Servicing Fee
Rate.
-23-
Extra
Principal Payment Amount:
As of
any Distribution Date, the lesser of (x) the related Total Monthly Excess Spread
for such Distribution Date and (y) the related Overcollateralization
Deficiency for such Distribution Date.
Xxxxxx
Mae:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Sponsor as contemplated by this
Agreement, the Master MLPISA or the Purchase Agreement, as applicable), a
determination made by any Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered.
Final
Scheduled Distribution Date:
The
Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date occurring in April 2037.
Fitch:
Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating Agency in
the
Preliminary Statement, for purposes of Section 12.05 the address for
notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: MBS Monitoring - HASCO (HSI Asset Securitization
Corporation Trust 2007-NC1), or such other address as Fitch may hereafter
furnish to the Depositor and the Securities Administrator.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Rate set forth in the Mortgage
Note is fixed for the term of such Mortgage Loan.
Form
8-K Disclosure Information:
As
defined in Section 8.12(a)(iii).
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note to be added to the Index to determine the
Mortgage Rate.
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. Independent means,
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 or indirect 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.
-24-
Index:
As to
each Adjustable Rate Mortgage Loan, the six-month LIBOR index, from time to
time
in effect for the adjustment of the Mortgage Rate as set forth in the related
Mortgage Note.
Initial
Certification:
As
defined in Section 2.02.
Initial
Sale Date:
The
date the Mortgage Loan was purchased by the Sponsor from the Mortgage Loan
Seller under the Master MLPISA.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including, but not limited to, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy, title insurance policy or Primary
Mortgage Insurance Policy (if any), including all riders and endorsements
thereto in effect, including any replacement policy or policies.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of Insurance Policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Accrual Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date, the
period commencing on the Distribution Date occurring in the month preceding
the
month in which the current Distribution Date occurs and ending on the day
immediately preceding the current Distribution Date (or, in the case of the
first Distribution Date, the period from and including the Closing Date to
but
excluding such first Distribution Date). For purposes of computing interest
accruals on each Class of LIBOR Certificates, each Interest Accrual Period
has the actual number of days in such month and each year is assumed to have
360 days. With respect to each Class of Lower Tier Interests and any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Interest
Carry Forward Amount:
As of
any Distribution Date and any Class of LIBOR Certificates, the sum of, if
applicable, (i) the portion of the Interest Payment Amount from Distribution
Dates prior to the current Distribution Date remaining unpaid immediately prior
to the current Distribution Date (excluding any Basis Risk Carryover Amount
with
respect to such Class), and (ii) interest on the amount in clause (i) above
at
the applicable Interest Rate (to the extent permitted by applicable
law).
Interest
Margin:
Except
as set forth in the following sentence, with respect to each Class of LIBOR
Certificates, the following percentages: Class A-1 Certificates, 0.100%;
Class A-2 Certificates, 0.140%; Class A-3 Certificates, 0.180%;
Class A-4 Certificates, 0.280%; Class M-1 Certificates, 0.280%;
Class M-2 Certificates, 0.310%; Class M-3 Certificates, 0.350%;
Class M-4 Certificates, 0.600%; Class M-5 Certificates, 0.700%;
Class M-6 Certificates, 1.000%, Class M-7 Certificates, 1.650%,
Class M-8 Certificates, 2.000%, Class M-9 Certificates, 2.000% and
Class M-10 Certificates, 1.750%. On the first Distribution Date after the
Optional Termination Date, the Interest Margins shall increase to the following
percentages: Class A-1 Certificates, 0.200%; Class A-2 Certificates,
0.280%; Class A-3 Certificates, 0.360%; Class A-4 Certificates,
0.560%; Class M-1 Certificates, 0.420%; Class M-2 Certificates,
0.465%; Class M-3 Certificates, 0.525%; Class M-4 Certificates,
0.900%; Class M-5 Certificates, 1.050%; Class M-6 Certificates,
1.500%, Class M-7 Certificates, 2.475%, Class M-8 Certificates,
3.000%, Class M-9 Certificates, 3.000% and Class M-10 Certificates,
2.625%.
-25-
Interest
Payment Amount:
With
respect to any Distribution Date for each Class of LIBOR Certificates, the
amount of interest accrued during the related Interest Accrual Period at the
applicable Interest Rate on the related Class Certificate Balance
immediately prior to such Distribution Date, as reduced by such Class’s share of
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date allocated to such Class pursuant to
Section 4.02.
Interest
Rate:
For
each Class of LIBOR Certificates, each Class of Upper Tier REMIC Regular
Interest and each class of Lower Tier Interest, the per annum rate set forth
or
calculated in the manner described in the Preliminary Statement.
Interest
Remittance Amount:
With
respect to any Distribution Date, that portion of Available Funds attributable
to interest.
Investor:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
IRS:
The
Internal Revenue Service.
Late
Collections:
With
respect to any Mortgage Loan and any Due Period, all amounts received after
the
Determination Date immediately following such Due Period, whether as late
payments of Scheduled Payments or as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Subsequent Recoveries or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
LIBOR:
With
respect to any Interest Accrual Period for the LIBOR Certificates, the rate
determined by the Securities Administrator on the related LIBOR Determination
Date on the basis of the offered rate for one-month U.S. dollar deposits as
such
rate appears on Reuters screen “LIBOR01” as of 11:00 a.m. (London time) on
such date; provided,
that if
such rate does not appear on Reuters screen “LIBOR01”, the rate for such date
will be determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00 a.m.
(London time) on such date to prime banks in the London interbank market. In
such event, the Securities Administrator shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If
at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Securities Administrator
(after consultation with the Depositor), at approximately 11:00 a.m. (New York
City time) on such date for one-month U.S. dollar loans to leading European
banks.
LIBOR
Certificates:
As
specified in the Preliminary Statement.
-26-
LIBOR
Determination Date:
With
respect to any Interest Accrual Period for the LIBOR Certificates, the second
London Business Day preceding the commencement of such Interest Accrual
Period.
Liquidated
Mortgage Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan (including any
REO
Property) which was liquidated in the calendar month preceding the month of
such
Distribution Date and as to which a Servicer has certified to the Securities
Administrator that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a Liquidated Mortgage Loan,
whether through a trustee’s sale, foreclosure sale or otherwise.
Loan-to-Value
Ratio
or
LTV:
As of
any date and as to any Mortgage Loan, the ratio (expressed as a
percentage) of the outstanding principal balance of the Mortgage Loan to
(a) in the case of a purchase, the lesser of (i) the sale price of the
Mortgaged Property and (ii) its appraised value at the time of sale or
(b) in the case of a refinancing or modification, the appraised value of
the Mortgaged Property at the time of the refinancing or
modification.
London
Business Day:
Any day
on which dealings in deposits of United States dollars are transacted in the
London interbank market.
Lower
Tier Interest:
An
interest in any REMIC formed hereby other than the Upper Tier
REMIC.
Master
Agreement:
The
ISDA Master Agreement, dated June 5, 2007, entered into between the Supplemental
Interest Trust and the Derivative Counterparty.
Master
MLPISA:
The
Amended and Restated Master Mortgage Loan Purchase and Interim Servicing
Agreement, among the Mortgage Loan Seller, New Century Mortgage Corporation,
as
interim servicer, and the Sponsor, as initial purchaser, dated as of March
1,
2006 (for first and second lien, fixed and adjustable rate mortgage
loans).
Master
Servicer:
Xxxxx
Fargo and any successors in interest, and if a successor master servicer is
appointed hereunder, such successor.
Master
Servicer Event of Default:
As
defined in Section 9.06.
Master
Servicing Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated 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.
-27-
MERS
Procedure Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS®
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS on the
MERS® System.
Monthly
Statement:
The
statement made available to the Certificateholders by the Securities
Administrator through its website pursuant to Section 4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc. If Xxxxx’x is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 12.05 the address for
notices to Moody’s shall be Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Pass-Through Group,
HASCO (HSI Asset Securitization Corporation Trust Series 2007-NC1), or such
other address as Moody’s may hereafter furnish to the Depositor and the
Securities Administrator.
Mortgage:
The
mortgage, deed of trust or other instrument identified on the Mortgage Loan
Schedule as securing a Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan contained in either the Servicing
File or Custodial File.
Mortgage
Loan:
An
individual Mortgage Loan that is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes, without limitation, the
Mortgage File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Subsequent Recoveries, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition proceeds, Prepayment Charges, and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan,
excluding replaced or repurchased Mortgage Loans.
Mortgage
Loan Seller:
NC
Capital Corporation, which sold Mortgage Loans to the Sponsor pursuant to the
Master MLPISA.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans prepared by the Depositor, delivered to the Trustee
on the Closing Date and referred to on Schedule I, such schedule setting
forth the Data Tape Information with respect to each Mortgage Loan.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Rate:
The
annual rate of interest borne on a Mortgage Note, which shall be adjusted from
time to time.
-28-
Mortgaged
Property:
With
respect to each Mortgage Loan, the real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment
of
the debt evidenced by the related Mortgage Note.
Mortgagor:
The
obligor(s) on a Mortgage Note.
Net
Derivative Payment:
The net
payment required to be made on the Derivative Payment Date either by (a) the
Supplemental Interest Trust to the Derivative Counterparty, to the extent that
the fixed amount payable by the Supplemental Interest Trust under the terms
of
the Swap Agreement exceeds the aggregate amount of the corresponding floating
amount payable by the Derivative Counterparty under the terms of the Swap
Agreement and any amounts payable by the Derivative Counterparty under the
Cap
Agreement, or (b) the Derivative Counterparty to the Supplemental Interest
Trust, to the extent that the aggregate amount of the floating amount payable
by
the Derivative Counterparty under the terms of the Swap Agreement and any such
amount payable by the Derivative Counterparty under the Cap Agreement exceeds
the corresponding fixed amount payable by the Supplemental Interest Trust under
the terms of the Swap Agreement, plus in the case of a payment made under either
clause (a) or clause (b) any unpaid amounts due under such clause from previous
Derivative Payment Dates, and accrued interest thereon as provided in the
applicable Derivative Agreement, as calculated by the Derivative Counterparty
and furnished to the Supplemental Interest Trust Trustee. Any Swap Termination
Payment or Cap Termination Payment will be made exclusive of the Net Derivative
Payment required to be made by the Derivative Counterparty or Supplemental
Interest Trust, as applicable, under the Swap Agreement or the Cap
Agreement.
Net
Monthly Excess Cash Flow:
For any
Distribution Date, the amount of interest and principal remaining for
distribution pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net
Prepayment Interest Shortfall:
For any
Distribution Date, the amount by which the sum of the Prepayment Interest
Shortfalls for such Distribution Date exceeds the sum of Compensating Interest
payments made with respect to such Distribution Date.
Net
Swap Payment:
With
respect to each Swap Payment Date, the net payment (not including any Swap
Termination Payment) required to be made pursuant to the terms of the Swap
Agreement plus 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 Securities Administrator.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Interest Accrual Period),
a
per annum rate equal to the weighted average of the Expense Adjusted Mortgage
Rates of the Mortgage Loans as of the first day of the related Due Period (not
including for this purpose Mortgage Loans for which Principal Prepayments in
Full have been received and distributed in the month prior to that Distribution
Date).
NIM
Issuer:
The
entity established as the issuer of the NIM Securities.
NIM
Securities:
Any
debt securities secured or otherwise backed by some or all of the Class X
and Class P Certificates that are rated by any Rating
Agency.
-29-
NIM
Trustee:
The
indenture trustee for the NIM Securities.
Non-Delay
Certificates:
As
specified in the Preliminary Statement.
Non-Permitted
Transferee:
A
Person other than a Permitted Transferee.
Non-U.S.
Person:
A
person that is not a U.S. Person.
Nonrecoverable
P&I Advance:
Any
P&I Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment (taking into
account Accepted Servicing Practices) of the related Servicer, the Master
Servicer, as successor servicer, or any successor master servicer including
the
Trustee, as applicable, will not or, in the case of a proposed P&I Advance,
would not be ultimately recoverable from related Late Collections on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable
Servicing Advance:
Any
Servicing Advances previously made or proposed to be made in respect of a
Mortgage Loan or REO Property, which, in accordance with Accepted Servicing
Practices, will not or, in the case of a proposed Servicing Advance, would
not
be ultimately recoverable from related Late Collections.
Notice
of Final Distribution:
The
notice to be provided by the Securities Administrator pursuant to
Section 11.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender
thereof.
Offered
Certificates:
As
specified in the Preliminary Statement.
Offering
Documents:
The
Prospectus and the Private Placement Memorandum.
Officer’s
Certificate:
A
certificate signed by an officer of a Servicer or the Master Servicer, as
applicable, with responsibility for the servicing of the Mortgage
Loans.
Opinion
of Counsel:
A
written opinion of counsel, which may be in-house or outside counsel to the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator or
the
Trustee, acceptable to the Trustee or the Securities Administrator, as
applicable, except that any opinion of counsel relating to (a) the qualification
of any REMIC created hereunder as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
Option
to Purchase:
With
respect to any Optional Termination Date, the right of the Master Servicer
at
its own option to purchase the Mortgage Loans.
Optional
Termination Date:
Any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is less than
or
equal to 10.00% of the Cut-off Date Pool Principal Balance.
Originator:
New
Century Mortgage Corporation and its successors in interest, as originator
of
the Mortgage Loans.
-30-
OTS:
Office
of Thrift Supervision, and any successor thereto.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero
which was not the subject of a Principal Prepayment in Full prior to such Due
Date and which did not become a Liquidated Mortgage Loan prior to such Due
Date.
Overcollateralization
Amount:
As of
any Distribution Date, the excess, if any, of (a) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
(b) the aggregate of the Class Certificate Balances of the LIBOR
Certificates as of such Distribution Date (after giving effect to all payments
of principal to such Certificates on such Distribution Date).
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the excess, if any, of (a) the
Overcollateralization Target Amount applicable to such Distribution Date over
(b) the Overcollateralization Amount (for purposes of this calculation
only, assuming 100% of the Principal Remittance Amount is applied as a principal
payment to the LIBOR Certificates on such Distribution Date, but before giving
effect to any other distributions on the LIBOR Certificates in reduction of
their respective Class Certificate Balances on such Distribution Date)
applicable to such Distribution Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Excess Overcollateralization Amount and (b) the Net Monthly Excess Cash
Flow.
Overcollateralization
Target Amount:
Prior
to the Stepdown Date, an amount equal to 3.85% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date. On and after the Stepdown
Date provided a Trigger Event is not in effect, an amount equal to the greater
of (i) 7.70% of the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period and (ii) 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date; provided,
however,
that
if, on any Distribution Date a Trigger Event exists, the Overcollateralization
Target Amount shall not be reduced to the applicable percentage of then current
aggregate Stated Principal Balance of the Mortgage Loans until the Distribution
Date on which a Trigger Event no longer exists but rather shall remain the
Overcollateralization Target Amount as determined for the immediately preceding
Distribution Date. When the Class Certificate Balance of each Class of
LIBOR Certificates has been reduced to zero, the Overcollateralization Target
Amount will thereafter equal zero.
-31-
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in such Certificate including
any interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
P&I
Advance:
As to
any Mortgage Loan or REO Property, any advance made by a Servicer in respect
of
any Remittance Date representing the aggregate of all payments of principal
and
interest, net of the applicable Servicing Fee, that were due during the related
Due Period on the Mortgage Loans and that were delinquent on the related
Determination Date, plus certain amounts representing assumed payments not
covered by any current net income on the Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure as determined pursuant to the related
Servicing Agreement.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued by the Securities
Administrator, the Trustee or any of their respective Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the
case of bankers’ acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars and issued by, any Depository Institution
and rated F1+ by Fitch, A-1+ by Standard & Poor’s and P-1 by
Moody’s;
(iii) repurchase
obligations with respect to any security described in clause (i) above
entered into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by Fitch, Moody’s and Standard & Poor’s (in each case, to
the extent they are designated as Rating Agencies in the Preliminary Statement),
and by each other Rating Agency that rates such securities, in its highest
long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by Fitch,
Moody’s and Standard & Poor’s (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement), and by each other
Rating Agency that rates such securities, in its highest short-term unsecured
debt rating available at the time of such investment;
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(vi) units
of
money market funds, including money market funds managed or advised by the
Trustee, the Securities Administrator or an Affiliate thereof, that have been
rated “Aaa” by Moody’s, “AAA” by Standard & Poor’s and, if rated by
Fitch, “AAA” by Fitch; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each of the Rating Agencies as a permitted
investment of funds backing “Aaa” or “AAA” rated securities;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive
(a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than
120.00% of the yield to maturity at par of the underlying
obligations.
Permitted
Transferee:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511
of the Code on unrelated business taxable income) on any excess inclusions
(as
defined in Section 860E(c)(1) of the Code) with respect to any Residual
Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) a Person that is a Disqualified
Non-U.S. Person or a U.S. Person with respect to whom income from a Residual
Certificate is attributable to a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of such Person or any
other U.S. Person, (vi) an “electing large partnership” within the meaning
of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any REMIC formed
hereby to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms “United States”, “State” and “international organization”
shall have the meanings set forth in Section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception
of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates:
As
specified in the Preliminary Statement.
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Pool
Stated Principal Balance:
As to
any Distribution Date, the aggregate of the Stated Principal Balances of the
Mortgage Loans for such Distribution Date that were Outstanding Mortgage Loans
on the Due Date in the related Due Period.
Prepayment
Charge:
Any
prepayment premium, penalty or charge collected by a Servicer with respect
to a
Mortgage Loan from a Mortgagor in connection with any Principal Prepayment
pursuant to the terms of the related Mortgage Note.
Prepayment
Interest Excess:
With
respect to each Servicer, as applicable, the meaning assigned to such term
in
the related Servicing Agreement
Prepayment
Interest Shortfall:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Prepayment
Period:
With
respect to each Servicer, the meaning assigned to such term (or to the term
“Principal Prepayment Period” with respect to Xxxxx Fargo) in the related
Servicing Agreement.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan as evidenced
by a policy or certificate, whether such policy is obtained by the Originator,
the lender or the borrower.
Principal
Payment Amount:
For any
Distribution Date, the sum of (i) the Basic Principal Payment Amount for
such Distribution Date and (ii) the Extra Principal Payment Amount for such
Distribution Date.
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan
(including upon liquidation of a Mortgage Loan) that is received in advance
of
its scheduled Due Date, excluding any Prepayment Charge thereon, and that is
not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of prepayment.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
Principal
Remittance Amount:
With
respect to any Distribution Date, the amount equal to the sum of the following
amounts (without duplication) with respect to the related Due Period:
(i) each scheduled payment of principal on a Mortgage Loan due during such
Due Period and received by the Servicers on or prior to the related
Determination Date or advanced by the Servicers for the related Remittance
Date,
(ii) all Principal Prepayments received during the related Prepayment
Period; (iii) all net Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds on the Mortgage Loans allocable to principal, and all
Subsequent Recoveries, actually collected by the Servicers during the related
Prepayment Period; (iv) the portion of the Repurchase Price allocable to
principal with respect to each Mortgage Loan repurchased by the Sponsor that
was
repurchased on or prior to the related Determination Date; (v) all
Substitution Adjustment Amounts allocable to principal with respect to the
substitutions of Mortgage Loans that occur on or prior to the related
Determination Date; and (vi) the allocable portion of the proceeds received
with respect to the termination of the Trust Fund pursuant to
clause (a) of Section 11.01 (to the extent such proceeds relate
to principal).
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Private
Certificates:
As
specified in the Preliminary Statement.
Private
Placement Memorandum:
The
Private Placement Memorandum, dated June 4, 2007, relating to the offering
of
the Class M-10 Certificates.
Prospectus:
The
Prospectus, dated April 27, 2007, as supplemented by the Prospectus
Supplement.
Prospectus
Supplement:
The
Prospectus Supplement, dated June 4, 2007, relating to the Offered
Certificates.
PTCE:
As
defined in Section 5.02(b).
Purchase
Agreement:
The
Mortgage Loan Purchase Agreement, dated as of May 1, 2007, between the Depositor
and the Sponsor.
Rating
Agency:
Each of
the Rating Agencies specified in the Preliminary Statement. If such organization
or a successor is no longer in existence, “Rating Agency” shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall
be
given to the Trustee and the Securities Administrator. References herein to
a
given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers. For purposes of
Section 12.05, the addresses for notices to each Rating Agency shall be the
address specified therefor in the definition corresponding to the name of such
Rating Agency, or such other address as either such Rating Agency may hereafter
furnish to the Depositor and the Securities Administrator.
Realized
Losses:
With
respect to any date of determination and any Liquidated Mortgage Loan, the
amount, if any, by which (a) the unpaid principal balance of such
Liquidated Mortgage Loan together with accrued and unpaid interest thereon
exceeds (b) the Liquidation Proceeds with respect thereto net of the
expenses incurred by the applicable Servicer in connection with the liquidation
of such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record
Date:
With
respect to any Distribution Date and any Certificate (other than a Certificate
issued in definitive form), the close of business on the Business Day
immediately preceding such Distribution Date; provided,
however,
that,
for any Certificate issued in definitive form, the Record Date shall be the
close of business on the last Business Day of the month preceding the month
in
which such applicable Distribution Date occurs (or, in the case of the first
Distribution Date, the Closing Date).
Reference
Bank:
As
defined in Section 4.04.
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 - 1,631 (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.
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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 Investment Letter:
As
defined in Section 5.02(b).
Regular
Certificates:
As
specified in the Preliminary Statement.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to the parties having reporting obligations
hereunder, as set forth on Exhibit S attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to any Servicing Function Participant engaged
by the Master Servicer, the Securities Administrator, the Custodian or any
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such parties.
Relief
Act Interest Shortfall:
With
respect to any Distribution Date and any Mortgage Loan, any reduction in the
amount of interest collectible on such Mortgage Loan for the most recently
ended
Due Period as a result of the application of the Servicemembers Civil Relief
Act
or any applicable similar state statutes.
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
2 Net Funds Cap:
For any
Distribution Date (and the related Interest 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 2 (other than any interest-only regular
interest), weighted in proportion to their Class Certificate Balances as of
the
beginning of the related Interest Accrual Period, multiplied, in the case of
a
LIBOR Certificate, by (ii) the quotient of (a) 30, divided by (b) the actual
number of days in the Interest Accrual Period.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
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Remittance
Date:
To the
extent provided in the related Servicing Agreement, (i) with respect to Xxxxx
Fargo, as Servicer, the 18th
calendar
day of any month, or if such 18th
day is
not a Business Day, the first Business Day immediately following, and (ii)
with
respect to Countrywide Servicing, the 21st
day of
any month, or if such 21st
day is
not a Business Day, the first Business Day immediately preceding.
REO
Disposition:
The
final sale by a Servicer of any REO Property.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event:
As
defined in Section 8.12(a)(iii).
Reporting
Servicer:
As
defined in Section 8.12(a)(ii).
Repurchase
Price:
With
respect to any Mortgage Loan, an amount equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan as of the date of repurchase,
(ii) interest on such unpaid principal balance of such Mortgage Loan at the
Mortgage Rate from the last date through which interest has been paid to the
date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) 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 (v) all expenses incurred by the Master Servicer, the
related Servicer or Trustee arising out of the Master Servicer’s, the related
Servicer’s or Trustee’s enforcement of the Sponsor’s repurchase obligation
hereunder.
Request
for Release:
The
Request for Release submitted by a Servicer to the Trustee, substantially in
the
form of Exhibit J.
Residual
Certificates:
As
specified in the Preliminary Statement.
Responsible
Officer:
When
used with respect to the Trustee, the Securities Administrator, the Master
Servicer, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any associate, or any other officer of
the
Trustee, the Securities Administrator or the Master Servicer customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject and who, in each case, shall
have
direct responsibility for the administration of this Agreement.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the average of the Delinquency Rates for
each
of the three (or one or two, in the case of the first and second Distribution
Dates) immediately preceding calendar months.
Rule 144A
Investment Letter:
As
defined in Section 5.02(b).
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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).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act, and (ii) Exchange Act Rules 13a-14(d) and
15d-14(d), as in effect from time to time; provided that if, after the Closing
Date (a) the Xxxxxxxx-Xxxxx Act is amended, (b) the Rules referred to in clause
(ii) are modified or superseded by any subsequent statement, rule or regulation
of the Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Commission from time to
time pursuant to the Xxxxxxxx-Xxxxx Act, which in any such case affects the
form
or substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous that then form of the required certification as of
the
Closing Date, the Xxxxxxxx-Xxxxx Certification shall be as agreed to by the
Master Servicer and the Depositor following a negotiation in good faith to
determine how to comply with any such new requirements.
Scheduled
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan which, unless otherwise
specified herein, shall give effect to any related Debt Service Reduction and
any Deficient Valuation that affects the amount of the monthly payment due
on
such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended and the rules and regulations
thereunder.
Securities
Administrator:
Xxxxx
Fargo and any successors in interest, and if a successor securities
administrator is appointed hereunder, such successor.
Securities
Administrator Float Period:
With
respect to the Distribution Date and the related amounts in the Distribution
Account, the period commencing on the Remittance Date immediately preceding
such
Distribution Date and ending on such Distribution Date.
Senior
Interest Payment Amount:
With
respect to any Distribution Date and any Class of Class A
Certificates, the sum of the Interest Payment Amount and the Interest Carry
Forward Amount, if any, for that Distribution Date for that Class.
Senior
Principal Payment Amount:
With
respect to any Distribution Date, the lesser of (i) the Principal Payment Amount
for that Distribution Date and (ii) the excess of (a) the aggregate
Class Certificate Balance of the Class A Certificates immediately prior to
that Distribution Date over (b) the lesser of (x) 46.60% of the aggregate
Stated Principal Balance of the Mortgage Loans for that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date over 0.50% of the aggregate State
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Servicer:
Each of
Xxxxx Fargo and Countrywide Servicing, and any successors in
interest.
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Service(s)(ing):
In
accordance with Regulation AB, the act of servicing and administering 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 and is subject
to the disclosure requirements set forth in Item 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term in this
Agreement shall have the meaning commonly understood by participants in the
residential mortgage-backed securitization market.
Servicing
Advances:
With
respect to the Servicers and the Master Servicer (including the Trustee in
its
capacity as successor master servicer), all customary and reasonable “out of
pocket” costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by the Servicers in the performance of its servicing obligations under
the related Servicing Agreement or by the Master Servicer (including the Trustee
in its capacity as successor master servicer) in the performance of its
obligations hereunder, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii)
the
management and liquidation of the REO Property and (iv) any other expenses
permitted to be reimbursed as Servicing Advances under the related Servicing
Agreement, as applicable.
Servicing
Agreement:
Each
reconstituted servicing agreement or assignment, assumption and recognition
agreement set forth on Exhibit M hereto relating to a Servicer and the servicing
of the related Mortgage Loans by such Servicer, as the same may be amended
from
time to time.
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:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
File:
With
respect to each Servicer, the meaning assigned to such term in the related
Servicing Agreement.
Servicing
Function Participant:
Any
Sub-Servicer or Subcontractor of a Servicer, the Master Servicer, the Custodian
or the Securities Administrator, respectively.
Servicing
Officer:
Any
officer of a Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name and facsimile signature appear on
a
list of servicing officers furnished to the Master Servicer and the Trustee
by
such Servicer on the Closing Date, as such list may from time to time be
amended.
Similar
Law:
As
defined in Section 5.02(b).
60+
Day Delinquent Mortgage Loan:
Each
Mortgage Loan with respect to which any portion of a Scheduled Payment is,
as of
the last day of the prior Due Period, two months or more past due (including
any
such Mortgage Loan in foreclosure, any such Mortgage Loan related to REO
Property, any such Mortgage Loan where the related Mortgagor has filed for
bankruptcy), without giving effect to any grace period.
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Sponsor:
HSBC
Bank USA, National Association, a national banking association, and its
successors in interest.
Standard &
Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. If Standard & Poor’s is designated as a Rating Agency
in the Preliminary Statement, for purposes of Section 12.05 the address for
notices to Standard & Poor’s shall be Standard & Poor’s, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Surveillance Group - HASCO (HSI Asset Securitization Corporation Trust,
Series 2007-NC1), or such other address as Standard & Poor’s may
hereafter furnish to the Depositor and the Securities
Administrator.
Standard &
Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date (whether or not received), minus
(ii) all amounts previously remitted to the Securities Administrator with
respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal.
For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received by the
related Servicer on or prior to the related Determination Date or advanced
by
the related Servicer for the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Prepayment Period, and the Stated Principal Balance of any Mortgage
Loan that has prepaid in full or has become a Liquidated Mortgage Loan during
the related Prepayment Period shall be zero.
Stepdown
Date:
The
earlier to occur of (i) the first Distribution Date following the Distribution
Date on which the aggregate Class Certificate Balances of the Class A
Certificates have been reduced to zero and (ii) the later to occur of (a) the
Distribution Date in June 2010 and (b) the first Distribution Date on which
the
Credit Enhancement Percentage for the Class A Certificates (calculated for
this
purpose only after taking into account payments of principal applied to reduce
the Stated Principal Balance of the Mortgage Loans for that Distribution Date
but prior to any applications of Principal Payment Amount to the Certificates
on
that Distribution Date) is greater than or equal to 53.40%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of the Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Custodian or the Securities
Administrator.
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Subsequent
Recovery:
With
respect to any Mortgage Loan or related Mortgaged Property that became a
Liquidated Mortgage Loan or was otherwise disposed of, all amounts received
in
respect of such Liquidated Mortgage Loan after an Applied Realized Loss Amount
related to such Mortgage Loan or Mortgaged Property is allocated to reduce
the
Class Certificate Balance of any Class of Class M Certificates.
Any Subsequent Recovery that is received during a Prepayment Period will be
included as part of the Principal Remittance Amount for the related Distribution
Date.
Sub-Servicer:
Any
Person that services Mortgage Loans on behalf of a Servicer, and is responsible
for the performance (whether directly or through sub-servicers or
Subcontractors) of servicing functions required to be performed under this
Agreement, any related Servicing Agreement or any sub-servicing agreement that
are identified in Item 1122(d) of Regulation AB.
Substitute
Mortgage Loan:
A
Mortgage Loan substituted by the Sponsor for a Deleted Mortgage Loan which
must
on the date of such substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit J,
(i) have a Stated Principal Balance, after deduction of all Scheduled
Payments due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) be accruing interest at a rate
not lower than and not more than 1.00% higher than that of the Deleted Mortgage
Loan; (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (iv) be of
the same type as the Deleted Mortgage Loan; and (v) conforms to each
representation and warranty applicable to the Deleted Mortgage Loan made in
the
Purchase Agreement.
Substitution
Adjustment Amount: As
defined in Section 2.03.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.06 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Supplemental Interest Trust Account, the Swap Account, the Excess
Reserve Fund Account, the Cap Agreement, the Cap Account, the Collateral
Account, the right to receive the Class X Distributable Amount as provided
in
Section 4.02(a)(iii)(I), the Class LT3-I Interest in REMIC 3 and the right
to
receive Class I Shortfalls.
Supplemental
Interest Trust Account:
The
Account created pursuant to Section 4.06(a).
Supplemental
Interest Trust Trustee:
The
trustee of the Supplemental Interest Trust appointed pursuant to Section
4.06(a), which is initially Xxxxx Fargo.
Swap
Account:
The
sub-account of the Supplemental Interest Trust Account created pursuant to
Section 4.06(a).
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust
and
the Swap Counterparty, dated June 5, 2007, which agreement provides for, among
other things, a Net Swap Payment to be paid pursuant to the conditions provided
therein, commencing with the Distribution Date in December 2007 and ending
on
the Distribution Date in November 2010, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
O.
-00-
Xxxx
Xxxxxx:
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 in the Swap
Account.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
ABN AMRO Bank, N.V.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a “Tax Event” or “Illegality” as such terms are defined in the
Master 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.
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 Accrual Period relating to such
Distribution Date), the product of (i) the Floating Rate Option (as defined
in
the Swap Agreement) for the related Swap Payment Date, (ii) two, and (iii)
the
quotient of (a) the actual number of days in the Accrual Period for the LIBOR
Certificates and (b) 30, as calculated by the Swap Counterparty and furnished
to
the Securities Administrator.
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 4.08(a)(i).
Swap
Replacement Receipts Account:
As
defined in Section 4.08(a)(i).
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 Distribution Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Securities Administrator.
Swap
Termination Receipts:
As
defined in Section 4.08(a)(i).
Swap
Termination Receipts Account:
As
defined in Section 4.08(a)(i).
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Tax
Matters Person:
The Holder of the Class R Certificates designated as “tax matters person” of
each REMIC created hereunder in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Termination
Event:
The
occurrence of a termination event under the termination provision of the Cap
Agreement or Swap Agreement, as applicable.
Termination
Price:
As
defined in Section 11.01.
Total
Monthly Excess Spread:
As to
any Distribution Date, an amount equal to the excess, if any, of (i) the
interest on the Mortgage Loans (other than Prepayment Interest Excesses)
received by the Servicers on or prior to the related Determination Date or
advanced by the Servicers for the related Remittance Date (net of Expense Fees)
over (ii) the sum of the amounts payable to the Certificates pursuant to
Section 4.02(a)(i)(A) through (C) on such Distribution Date.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit:
As
defined in Section 5.02(c).
Transferor
Certificate:
As
defined in Section 5.02(b).
Trigger
Event:
Either
a Cumulative Loss Trigger Event or a Delinquency Trigger Event.
Trust:
The
express trust created hereunder in Section 2.01(c).
Trust
Fund:
The
corpus of the trust created hereunder consisting of (i) the Mortgage Loans
and all interest and principal with respect thereto received on or after the
related Cut-off Date, other than such amounts which were due on the Mortgage
Loans on or prior to the related Cut-off Date; (ii) the Collection Account,
the Distribution Account, the Cap Termination Receipts Account, the Cap
Replacement Receipts Account the Swap Termination Receipts Account, the Swap
Replacement Receipts Account and
all
amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Depositor’s rights under the Purchase Agreement, the Master MLPISA and each
Servicing Agreement; (v) the Insurance Policies; and (vi) all proceeds
of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee:
Deutsche Bank National Trust Company, a national banking association, and its
successors in interest and, if a successor trustee is appointed hereunder,
such
successor.
Underwriters’
Exemption:
Any
exemption listed under footnote 1 of, and amended by, Prohibited Transaction
Exemption 96-84, 61 Fed. Reg. 58234 (1996), as amended by XXX 00-00,
00 Xxx. Xxx. 00000 (1997), PTE 2000-58, 65 Fed. Reg. 67765 (2000), PTE
2002-41, 67 Fed. Reg. 54487 (2002) and PTE 2007-5, 72Fed. Reg. 13130
(2007), or any successor exemption.
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Unpaid
Realized Loss Amount:
With
respect to any Class of Class M Certificates and as to any
Distribution Date, is the excess of (i) Applied Realized Loss Amounts with
respect to such Class over (ii) the sum of (a) all distributions
in reduction of such Applied Realized Loss Amounts on all previous Distribution
Dates, and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Class M Certificates in respect of any Unpaid Realized Loss
Amount will not be applied to reduce the Class Certificate Balance of such
Class.
Upper
Tier REMIC:
As
described in the Preliminary Statement.
Upper
Tier REMIC Regular Interest:
As
described in the Preliminary Statement.
U.S.
Person:
(i) A citizen or resident of the United States; (ii) a corporation (or
entity treated as a corporation for tax purposes) created or organized in the
United States or under the laws of the United States or of any State thereof,
including, for this purpose, the District of Columbia; (iii) a partnership
(or entity treated as a partnership for tax purposes) organized in the United
States or under the laws of the United States or of any State thereof,
including, for this purpose, the District of Columbia (unless provided otherwise
by future Treasury regulations); (iv) an estate whose income is includible
in gross income for United States income tax purposes regardless of its source;
or (v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue
to
be U.S. Persons.
Voting
Rights:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. As of any date of determination, 1.00% of all Voting Rights
shall be allocated to each of the Class X, Class P and Class R
Certificates, if any (such Voting Rights to be allocated among the holders
of
Certificates of each such Class in accordance with their respective
Percentage Interests) and the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A., a national banking association, and its successors in
interest.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans
.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Trust Fund including all
interest and principal received on or with respect to the Mortgage Loans on
or
after the Cut-off Date (other than Scheduled Payments due on the Mortgage Loans
on or before the Cut-off Date).
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Concurrently
with the execution of this Agreement, the Derivative Agreements shall be
delivered to the Securities Administrator. In connection therewith, the
Depositor hereby directs the Securities Administrator (solely in its capacity
as
Supplemental Interest Trust Trustee) and the Securities Administrator is hereby
authorized to execute and deliver each of the Derivative Agreements on behalf
of
the Supplemental Interest Trust, for the benefit of Certificateholders. The
Depositor, the Sponsor, the Master Servicer, the Credit Risk Manager and the
Certificateholders (by their acceptance of such Certificates) acknowledge and
agree that the Securities Administrator is executing and delivering the
Derivative Agreements solely in its capacity as Supplemental Interest Trust
Trustee and not in its individual capacity. The Securities Administrator shall
have no duty or responsibility to enter into any other interest rate swap
agreement upon the expiration or termination of the Swap Agreement or interest
rate cap agreement upon the termination of the Cap Agreement unless so directed
by the Depositor.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under (i) the Purchase
Agreement, including the right to enforce the Sponsor’s obligation to repurchase
or substitute defective Mortgage Loans under Section 4 of the Purchase Agreement
and (ii) each Servicing Agreement and the Master MLPISA, to the extent assigned
under the Purchase Agreement. The Trustee hereby accepts such assignment, and
as
set forth herein in Section 2.03(d), shall be entitled to exercise all the
rights of the Depositor under the Purchase Agreement as if, for such purpose,
it
were the Depositor.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Custodian for the benefit of
the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the
original Mortgage Note bearing all intervening endorsements necessary to show
a
complete chain of endorsements from the original payee, endorsed in blank,
“Pay
to the order of _____________, without recourse”, and, if previously endorsed,
signed in the name of the last endorsee by a duly qualified officer of the
last
endorsee;
(ii) the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Mortgage shall be assigned, with assignee’s name
left blank;
(iii) the
original of each guarantee executed in connection with the Mortgage Note, if
any;
(iv) the
original recorded Mortgage, with evidence of recording thereon. If in connection
with any Mortgage Loan, the original Mortgage cannot be delivered with evidence
of recording thereon on or prior to the Closing Date because of a delay caused
by the public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Depositor shall
deliver or cause to be delivered to the Custodian, (A) in the case of a
delay caused by the public recording office, a copy of such Mortgage certified
by the Mortgage Loan Seller, escrow agent, title insurer or closing attorney
to
be a true and complete copy of the original recorded Mortgage and (B) in
the case where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to
be
a true and complete copy of the original recorded Mortgage;
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(v) originals
or a certified copy of each modification agreement, if any;
(vi) the
originals of all intervening assignments of Mortgage with evidence of recording
thereon evidencing a complete chain of ownership from the Mortgage Loan Seller
to the last assignee, or if any such intervening assignment of Mortgage has
not
been returned from the applicable public recording office or has been lost
or if
such public recording office retains the original recorded intervening
assignments of Mortgage, a photocopy of such intervening assignment of Mortgage,
together with (A) in the case of a delay caused by the public recording
office, an officer’s certificate of the Mortgage Loan Seller, escrow agent,
closing attorney or the title insurer insuring the Mortgage stating that such
intervening assignment of Mortgage has been delivered to the appropriate public
recording office for recordation and that such original recorded intervening
assignment of Mortgage or a copy of such intervening assignment of Mortgage
certified by the appropriate public recording office to be a true and complete
copy of the original recorded intervening assignment of Mortgage will be
promptly delivered to the Custodian upon receipt thereof by the party delivering
the officer’s certificate or by the Mortgage Loan Seller; or (B) in the
case of an intervening assignment of mortgage where a public recording office
retains the original recorded intervening assignment of Mortgage or in the
case
where an intervening assignment of Mortgage is lost after recordation in a
public recording office, a copy of such intervening assignment of Mortgage
with
recording information thereon certified by such public recording office to
be a
true and complete copy of the original recorded intervening assignment of
Mortgage;
(vii) if
the
Mortgage Note, the Mortgage, any Assignment of Mortgage or any other related
document has been signed by a Person on behalf of the Mortgagor, the copy of
the
power of attorney or other instrument that authorized and empowered such Person
to sign;
(viii) the
original lender’s title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy has
not yet been issued) in the form of an ALTA mortgage title insurance policy,
containing all required endorsements and insuring the Trustee and its successors
and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan;
(ix) if
applicable, the original of any Primary Mortgage Insurance Policy or certificate
or, an electronic certification, evidencing the existence of the Primary
Mortgage Insurance Policy or certificate, if private mortgage guaranty insurance
is required; and
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(x) original
of any security agreement, chattel mortgage or equivalent document executed
in
connection with the Mortgage, if any.
From
time
to time, the Mortgage Loan Seller, the Depositor or a Servicer, as applicable,
shall forward to the Custodian additional original documents, additional
documents evidencing an assumption, modification, consolidation or extension
of
a Mortgage Loan, in accordance with the terms of this Agreement, the Master
MLPISA and the Servicing Agreements, upon receipt of such documents. All such
mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the “Custodial
File”.
Assignments
of Mortgage shall not be required to be completed and submitted for recording
with respect to any Mortgage Loan if the Trustee and each Rating Agency have
received an Opinion of Counsel from the Depositor, satisfactory in form and
substance to the Trustee and each Rating Agency to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is
not
necessary to protect the Trust Fund’s interest in the related Mortgage Note. If
the Assignment of Mortgage is to be recorded, the Mortgage shall be assigned
by
the Mortgage Loan Seller to “Deutsche Bank National Trust Company, as trustee
under the Pooling and Servicing Agreement dated as of May 1, 2007, for HSI
Asset
Securitization Corporation Trust 2007-NC1”.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be
known, for convenience, as “HSI Asset Securitization Corporation Trust 2007-NC1”
and Deutsche Bank National Trust Company is hereby appointed as Trustee and
Xxxxx Fargo Bank, N.A. is appointed as Securities Administrator in accordance
with the provisions of this Agreement. The parties hereto acknowledge and agree
that it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in the Master MLPISA and in the Purchase
Agreement.
(d) The
Trust
shall have the capacity, power and authority, and the Trustee on behalf of
the
Trust is hereby authorized, to accept the sale, transfer, assignment, set over
and conveyance by the Depositor to the Trust of all the right, title and
interest of the Depositor in and to the Trust Fund (including, without
limitation, the Mortgage Loans) pursuant to Section 2.01(a).
Section
2.02 Acceptance
by the Custodian of the Mortgage Loans.
The
Custodian shall acknowledge, on the Closing Date, receipt by the Custodian
of
the documents identified in the Initial Certification in the form annexed hereto
as Exhibit E (“Initial
Certification”),
and
declares that it holds and will hold such documents and the other documents
delivered to it pursuant to Section 2.01, and that it holds or will hold
such other assets as are included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders. The Custodian
shall maintain possession of the related Mortgage Notes in the States of
Minnesota, California, and Utah unless otherwise permitted by the Rating
Agencies.
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In
connection with the Closing Date, the Custodian shall be required to deliver
via
facsimile (with original to follow the next Business Day) to the Depositor,
the
Securities Administrator, the Trustee and the Servicers an Initial Certification
prior to the Closing Date, or, as the Depositor agrees on the Closing Date,
certifying receipt of a Mortgage Note and Assignment of Mortgage for each
Mortgage Loan. The Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodian File.
Within
90 days of the Closing Date, the Custodian shall ascertain that all
documents identified in the Document Certification and Exception Report in
the
form attached hereto as Exhibit F are in its possession, and shall deliver
to the Depositor, the Securities Administrator, the Trustee and the Servicers,
a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F, to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception
and
not covered by such certification): (i) all documents identified in the
Document Certification and Exception Report and required to be reviewed by
it
are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based
on its examination and only as to the foregoing documents, the Mortgage Loan
identifying number, the state and five-digit ZIP code of the Mortgaged Property
and the original principal balance of the Mortgage Loan is correct; and
(iv) each Mortgage Note has been endorsed as provided in Section 2.01
of this Agreement. Neither the Trustee nor the Custodian shall be responsible
to
verify the validity, sufficiency or genuineness of any document in any Custodial
File.
The
Custodian shall retain possession and custody of each Custodial File in
accordance with and subject to the terms and conditions set forth
herein.
Section
2.03 Remedies
for Breaches of Representations and Warranties with Respect to the Mortgage
Loans.
(a) Upon
the
removal of a Deleted Mortgage Loan and the substitution of a Substititute
Mortgage Loan and the deposit to the related Collection Account of the amount
required to be deposited therein in connection with such substitution, the
Custodian shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the Sponsor and
the
Trustee, upon receipt of a Request for Release certifying that all amounts
required to be deposited in accordance with this Section 2.03(a) have been
deposited in the related Collection Account, shall execute and deliver at the
Sponsor’s direction such instruments of transfer or assignment prepared by the
Sponsor in each case without recourse, as shall be necessary to vest title
in
the Sponsor of the Trustee’s interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
(b) In
addition to the repurchase or substitution obligations referred to in
Section 2.03(d) below, the Sponsor shall indemnify the Depositor, any of
its Affiliates, the Master Servicer, each Servicer, the Securities
Administrator, the Trustee and the Trust and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses (including,
without limitation, any taxes payable by the Trust) resulting from any third
party claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach by the Sponsor of any of its representations and
warranties or obligations contained in this Agreement.
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(c) Upon
receipt of a Request for Release substantially in the form of Exhibit J
hereto, the Custodian shall release the related Custodial File held for the
benefit of the Certificateholders to the Sponsor, as directed by the applicable
Servicer, and the Trustee shall execute and deliver at such Person’s direction
such instruments of transfer or assignment prepared by such Person, in each
case
without recourse, as shall be necessary to transfer title from the Trustee.
In
accordance with Section 12.05(a), the Securities Administrator shall
promptly notify each Rating Agency of a purchase of a Mortgage Loan pursuant
to
this Section 2.03 or pursuant to the Master MLPISA.
(d) It
is
understood and agreed that the representations and warranties of the Sponsor
set
forth in Section 4 of the Purchase Agreement and assigned to the Trustee by
the
Depositor hereunder shall survive the transfer of the Mortgage Loans by the
Depositor to the Trustee on the Closing Date, and shall inure to the benefit
of
the Trustee and the Certificateholders notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment of Mortgage and shall
continue throughout the term of this Agreement. Upon the discovery by any of
the
Sponsor, the Depositor, the Securities Administrator, the Trustee, the Master
Servicer or any Servicer of a breach of any of the Sponsor’s representations and
warranties set forth in Section 4 of the Purchase Agreement, the party
discovering the breach shall give prompt written notice to the others. Within
30 days of the earlier of either discovery by or notice to the Sponsor of
any breach of any of the foregoing representations or warranties that materially
and adversely affects the value of any Mortgage Loan or the interest of the
Trustee or the Certificateholders therein, the Sponsor shall use its best
efforts to cure such breach in all material respects and, if such defect or
breach cannot be remedied, the Sponsor shall, at the Depositor’s instructions as
specified in writing and provided to the Sponsor and the Trustee, (i) if
such 30-day period expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the same manner and subject to the same conditions
set forth in this Section 2.03 or (ii) repurchase such Mortgage Loan
at the Repurchase Price; provided,
however,
that
any such substitution pursuant to clause (i) above shall not be
effected prior to the delivery to the Custodian of a Request for Release
substantially in the form of Exhibit J, and the delivery of the Mortgage
File to the Custodian for any such Substitute Mortgage Loan. It is understood
and agreed that the obligations of the Sponsor under this Agreement to cure,
repurchase or substitute any Mortgage Loan as to which a breach of a
representation and warranty has occurred and is continuing, together with any
related indemnification obligations of the Sponsor set forth in Section 2.03(b),
shall constitute the sole remedies against the Sponsor available to the
Certificateholders, the Depositor and any of its affiliates, or the Trustee
on
their behalf.
The
provisions of this Section 2.03 shall survive delivery of the respective
Custodial Files to the Custodian for the benefit of the
Certificateholders.
Section
2.04 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has
executed and delivered to, or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
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Section
2.05 REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Startup
Day”
for
purposes of the REMIC Provisions shall be the Closing Date. The
“latest
possible maturity date”
is
the
Distribution Date occurring three years after the month in which the
latest Mortgage Loan maturity date (of the Mortgage Loans held in the Trust
on
the Closing Date) occurs.
Section
2.06 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the other parties to
this
agreement that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the power and authority to convey the Mortgage Loans and to
execute, deliver and perform, and to enter into and consummate transactions
contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite company action having been taken, and, assuming the
due
authorization, execution and delivery hereof by the other parties hereto,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of, or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been received or obtained on or prior to the Closing
Date;
(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any term,
condition or provision of any material indenture, deed of trust, contract or
other agreement or instrument to which the Depositor or any of its subsidiaries
is a party or by which it or any of its subsidiaries is bound; (ii) results
or will result in a violation of any law, rule, regulation, order, judgment
or
decree applicable to the Depositor of any court or governmental authority having
jurisdiction over the Depositor or its subsidiaries; or (iii) results in
the creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
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(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that would materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of the Mortgage Note and the Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders, all right, title,
and
interest of the Depositor thereto as note holder and mortgagee or (ii) to
grant to the Trustee, for the benefit of the Certificateholders, the security
interest referred to in Section 12.04.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.06 shall survive delivery of the respective
Mortgage Files to the Custodian and shall inure to the benefit of the
Trustee.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Establishment
of Certain Accounts.
(a) (i) The Securities Administrator shall establish and maintain
the Excess Reserve Fund Account as an asset of the Supplemental Interest Trust,
on behalf of the Class X Certificateholders, to receive any Basis Risk
Payment and to secure their limited recourse obligation to pay to the LIBOR
Certificateholders any Basis Risk Carryover Amounts. The Excess Reserve Fund
Account shall be funded on the Closing Date with an initial deposit of $1,000
by
the Depositor.
(ii) On
each
Distribution Date, the Securities Administrator shall deposit the amount of
any
Basis Risk Payment for such date into the Excess Reserve Fund
Account.
(b) (i) On
each
Distribution Date on which there exists a Basis Risk Carryover Amount on any
Class of LIBOR Certificates, the Securities Administrator shall
(1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(D), the lesser
of (x) the Class X Distributable Amount (without regard to the
reduction in the definition thereof with respect to the Basis Risk Payment
(to
the extent remaining after the distributions specified in
Sections 4.02(a)(iii)(A)
through (I)) and (y) the aggregate Basis Risk Carryover Amounts for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account
amounts necessary to pay to such Class or Classes of LIBOR Certificates the
applicable Basis Risk Carryover Amount. Such payments shall be allocated to
those Classes on a pro rata
basis
based upon the amount of Basis Risk Carryover Amount owed to each such
Class and shall be paid in the priority set forth in
Sections 4.02(a)(iii)(E).
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(ii) The
Securities Administrator shall account for the Excess Reserve Fund Account
as an
asset of a grantor trust under subpart E, Part I of subchapter J
of the Code and not as an asset of any REMIC created pursuant to this Agreement.
The beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal tax purposes, amounts transferred by the
Upper Tier REMIC to the Excess Reserve Fund Account shall be treated as
distributions by the Securities Administrator to the Class X
Certificateholders.
(iii) Any
Basis
Risk Carryover Amounts paid by the Securities Administrator to the LIBOR
Certificateholders shall be accounted for by the Securities Administrator as
amounts paid first to the Holders of the Class X Certificates and then to
the respective Class or Classes of LIBOR Certificates. In addition, the
Securities Administrator shall account for such Certificateholders’ rights to
receive payments of Basis Risk Carryover Amounts as rights in a limited recourse
notional principal contract written by the Class X Certificateholders in
favor of such Certificateholders.
(iv) Notwithstanding
any provision contained in this Agreement, the Securities Administrator shall
not be required to make any payments to and from the Excess Reserve Fund Account
except as expressly set forth in this Section 3.01(b) and
Sections 4.02(a)(iii)(D), (E) and (J).
(c) The
Securities Administrator shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Master Servicer shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the
following:
(i) the
aggregate amount remitted by the Servicers to the Master Servicer pursuant
to
the Servicing Agreements ;
(ii) any
amount deposited by the Servicers pursuant to the Servicing Agreements in
connection with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that a Servicer shall remit any amount not required to be remitted, it
may
at any time direct the Securities Administrator in writing to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice to
the
Securities Administrator which describes the amounts deposited in error in
the
Distribution Account. All funds deposited in the Distribution Account shall
be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.02.
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Section
3.02 Investment
of Funds in the Distribution Account.
(a) The Securities Administrator may invest funds in the Distribution
Account during the Securities Administrator’s Float Period, in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement; provided,
however,
that
any such Permitted Investment managed by or advised by the Securities
Administrator or any of its Affiliates may mature, unless payable on demand,
no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be
held
to maturity, unless payable on demand. Any investment of funds in the
Distribution Account shall be made in the name of the Securities Administrator.
The Securities Administrator shall be entitled to sole possession over each
such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, as applicable, together with any document of transfer necessary to
transfer title to such investment to the Securities Administrator or its agent,
as applicable. In the event amounts on deposit in the Distribution Account
are
at any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution
Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Securities Administrator during the Securities
Administrator’s Float Period, shall be for the benefit of the Securities
Administrator, and shall be subject to the Securities Administrator’s withdrawal
in the manner set forth in Section 4.01. Notwithstanding anything in this
Section 3.02(b), the Securities Administrator shall be liable to the Trust
for
any loss on any funds it has invested under this Section 3.02(b) only during
the
Securities Administrator Float Period, and the Securities Administrator shall
deposit in the Distribution Account the amount of any loss of principal incurred
in respect of any such Permitted Investment made with funds in such account
immediately upon realization of such loss.
(c) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation shall not
be
considered an amount that is reimbursable for payable pursuant to this
Agreement.
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Section
3.03 Report
on Assessment of Compliance with Relevant Servicing Criteria.
On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer, the Securities
Administrator and the Custodian, each at its own expense, shall furnish or
otherwise make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria set forth in Exhibit S 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 Relevant
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 8.12, 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.
Promptly
after receipt of each such report on assessment of compliance as well as the
reports on assessment of compliance provided to the Depositor under the
Servicing Agreements, (i) the Depositor shall review each such report and,
if
applicable, consult with the Master Servicer, the Securities Administrator,
the
Custodian, any Servicer and any Servicing Function Participant engaged by any
such party as to the nature of any material instance of noncompliance with
the
Relevant Servicing Criteria by each such party, and (ii) the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit S or as set forth in the
applicable Servicing Agreement.
The
Master Servicer shall enforce any obligation of each Servicer to cause to be
delivered to the Securities Administrator an annual report on assessment of
compliance within the time frame set
forth
in the applicable Servicing Agreement, and in such form and
substance as may be required by the applicable Servicing Agreement.
In
the
event the Master Servicer, the Securities Administrator, the Custodian or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a report on assessment of compliance pursuant to this Section
3.03, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Section
3.04 Report
on Attestation of Compliance with Relevant Servicing Criteria.On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer, the Securities
Administrator and the Custodian, 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 Securities Administrator,
the Custodian or such other Servicing Function Participants, as the case may
be)
that is a member of the American Institute of Certified Public Accountants
to
furnish an attestation report to the Securities Administrator and the Depositor,
to the effect that (i) 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 (ii) on the basis
of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, 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.
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Promptly
after receipt of each such assessment of compliance and attestation report
as
well as the assessment of compliance and attestation report provided the
Depositor under the Servicing Agreements, the Securities Administrator shall
confirm that each assessment submitted pursuant to Section 3.03 and the
Servicing Agreements is coupled with an attestation meeting the requirements
of
this Section and notify the Depositor of any exceptions.
The
Master Servicer shall enforce any obligation of each Servicer to cause to be
delivered to the Master Servicer an attestation within the time
frame set
forth
in the applicable Servicing Agreement, and in such form and
substance as may be required by the applicable Servicing Agreement.
In
the
event the Master Servicer, the Securities Administrator, the Custodian or any
Servicing Function Participant engaged by any such party, is terminated, assigns
its rights and duties under, or resigns pursuant to the terms of, this Agreement
or any other applicable agreement, as the case may be, such party shall cause
a
registered public accounting firm to provide an attestation pursuant to this
Section 3.04, or to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Section
3.05 Annual
Officer’s Certificates.(a)
Each
Form 10-K filed with the Commission shall include a Xxxxxxxx-Xxxxx Certification
exactly as set forth in Exhibit L attached hereto, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Master Servicer,
the
Custodian and the Securities Administrator shall, and 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 10th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act, commencing in March 2008, and otherwise within a reasonable period of
time
upon request, a certification (each, a “Back-Up
Xxxxxxxx-Xxxxx Certification”)
substantially in the form of Exhibit N-1, 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 Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or by
facsimile at 000-000-0000. In the event any such party or any Servicing Function
Participant engaged by any such party is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable sub-servicing agreement, as the
case
may be, such party shall provide a Back-Up Xxxxxxxx-Xxxxx Certification to
the
Certifying Person pursuant to this Section 3.05 with respect to the period
of
time it was subject to this Agreement or any applicable sub-servicing agreement,
as the case may be. Notwithstanding the foregoing, (i) the Master Servicer
and
the Securities Administrator shall not be required to deliver a Back-Up
Xxxxxxxx-Xxxxx Certification to each other if both are the same Person and
the
Master Servicer is the Certifying Person and (ii) the Master Servicer shall
not
be obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it
does
not receive any Back-Up Xxxxxxxx-Xxxxx Certification required to be furnished
to
it pursuant to this section or any Servicing Agreement.
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(b) On
or
before March 15th
of each
calendar year, commencing in March 2008, the Master Servicer and the Securities
Administrator shall deliver (or otherwise make available) (and the Master
Servicer and Securities Administrator shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator, an Officer’s Certificate substantially in the form of Exhibit U
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 a Servicing Function Participant, 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 a Servicing Function Participant,
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.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by any such party is terminated or resigns pursuant
to the terms of this Agreement, or any applicable agreement in the case of
a
Servicing Function Participant, as the case may be, such party shall provide
an
Officer’s Certificate pursuant to this Section 3.05 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
3.06 Indemnification.(a) Each
of
the Depositor, the Master Servicer, the Securities Administrator, the Custodian,
the Trustee (only in the case of any failure to deliver any information, data
or
materials required to be included in any Additional Form 10-D Disclosure,
Additional Form 10-K Disclosure or Form 8-K Disclosure Information that the
Trustee is obligated to provide, and only with respect to the Depositor, the
Master Servicer and the Securities Administrator) and any Servicing Function
Participant (each, an “Indemnifying Party”) engaged by any such party, shall
indemnify and hold harmless each other Indemnifying Party, and each of its
directors, officers, employees, agents, and affiliates from and against any
and
all claims, losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (a) any breach by such party of any if its obligations hereunder,
including particularly its obligations to provide any annual statement of
compliance, annual assessment of compliance with Servicing Criteria or
attestation report 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 such party including any material
misstatement or material omission in (i) any annual statement of compliance,
annual assessment of compliance with Servicing Criteria or attestation report
delivered by it, or by any Servicing Function Participant engaged by it,
pursuant to this Agreement, or (ii) any Additional Form 10-D Disclosure,
Additional Form 10-K Disclosure or Form 8-K Disclosure Information provided
by
it, or (c) the negligence, bad faith or willful misconduct of such indemnifying
party in connection with its performance hereunder. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or the
Depositor, as the case may be, then each Indemnifying Party agrees that it
shall
contribute to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee, the Custodian or the Depositor, as applicable,
as a
result of any claims, losses, damages or liabilities incurred by such party
in
such proportion as is appropriate to reflect the relative fault of the
indemnified party on the one hand and the indemnifying party on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
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(b) The
Depositor, the Securities Administrator,
the
Custodian
and the Trustee shall immediately notify the Master Servicer if a claim is
made
by a third party with respect to this Agreement or the Mortgage Loans which
would entitle the Depositor, the Securities Administrator,
the
Custodian,
the Trustee or the Trust to indemnification from the Master Servicer, 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. If the Master Servicer and any such indemnified
party have a conflict of interest with respect to any such claim, the
indemnified party shall have the right to retain separate counsel.
Section
3.07 Advances.
(a) To the extent provided in the related Servicing Agreement, the
amount of P&I Advances to be made by each Servicer for any Remittance Date
shall equal, subject to Section 3.07(c), the sum of (i) the aggregate
amount of Scheduled Payments (with each interest portion thereof net of the
related Servicing Fee), due during the Due Period immediately preceding such
Remittance Date in respect of the Mortgage Loans, which Scheduled Payments
were
not received as of the close of business on the related Determination Date,
plus
(ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with each
interest portion thereof net of the related Servicing Fee) that would have
been
due on the related Due Date in respect of the related Mortgage Loans, over
the
net income from such REO Property transferred to the Collection Account for
distribution on such Remittance Date.
(b) To
the
extent provided in the related Servicing Agreement, on each Remittance Date,
each Servicer shall remit in immediately available funds to the Master Servicer
an amount equal to the aggregate amount of P&I Advances, if any, to be made
in respect of the Mortgage Loans and REO Properties for the related Remittance
Date either (i) from its own funds or (ii) from the Collection
Account, to the extent of funds held therein for future distribution (in which
case, it will cause to be made an appropriate entry in the records of the
Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 3.07, used by it in discharge of any such P&I
Advance) or (iii) in the form of any combination of (i) and
(ii) aggregating the total amount of P&I Advances to be made by the
applicable Servicer with respect to the Mortgage Loans and REO Properties.
To
the extent provided in the related Servicing Agreement, any Amounts Held for
Future Distribution and so used shall be appropriately reflected in the
applicable Servicer’s records and replaced by such Servicer by deposit in the
Collection Account on or before any future Remittance Date to the extent
required.
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(c) To
the
extent provided in the related Servicing Agreement, the obligation of each
Servicer to make such P&I Advances is mandatory, notwithstanding any other
provision of this Agreement but subject to (d) below, and, with respect to
any Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith or the removal thereof from coverage
under
this Agreement, except as otherwise provided in this Section.
(d) To
the
extent provided in the related Servicing Agreement, notwithstanding anything
herein to the contrary, no P&I Advance or Servicing Advance shall be
required to be made hereunder by any Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. To the extent provided in the related
Servicing Agreement, the determination by any Servicer that it has made a
Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or that any
proposed P&I Advance or Servicing Advance, if made, would constitute a
Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance,
respectively, shall be evidenced by a Servicing Officer’s certificate of the
applicable Servicer delivered to the Master Servicer. In addition, to the extent
provided in the related Servicing Agreement, the Servicer shall not be required
to advance any Relief Act Interest Shortfalls.
(e) To
the
extent provided in the related Servicing Agreement, except as otherwise provided
herein, the Servicer shall be entitled to reimbursement pursuant the applicable
section of its related Servicing Agreement for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and
other
payments or recoveries (including Insurance Proceeds, Condemnation Proceeds
and
Subsequent Recoveries) with respect to the related Mortgage Loan.
ARTICLE
IV
DISTRIBUTIONS
Section
4.01 The
Distribution Account.
On each
Remittance Date, the Master Servicer shall deposit in the Distribution Account
all funds remitted to it by the Servicers pursuant to the Servicing Agreements.
The Securities Administrator may retain or withdraw from the Distribution
Account, (i) amounts necessary to reimburse the Servicers pursuant to the
Servicing Agreements, (ii) amounts necessary to reimburse the Master Servicer
for any previously unreimbursed Advances and any Advances the Master Servicer
deems to be nonrecoverable from the related Mortgage Loan proceeds, (iii) an
amount to indemnify the Master Servicer or the Servicers for amounts due in
accordance with this Agreement, (iv) all amounts representing Prepayment Charges
(payable to the Class P Certificateholders), (v) to reimburse the Master
Servicer, any Servicer or the Trustee, as the case may be, for expenses
reasonably incurred in respect of any breach or defect giving rise to the
repurchase obligation of the Sponsor under this Agreement that were included
in
the Repurchase Price of the Mortgage Loan, including any expenses arising out
of
the enforcement of the repurchase obligation, to the extent not otherwise paid
pursuant to the terms hereof and (vi) any other amounts that each of the
Depositor, Trustee, Master Servicer and the Securities Administrator is entitled
to receive hereunder for reimbursement, indemnification or
otherwise.
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Section
4.02 Priorities
of Distribution.
(a) On each Distribution Date (or, in the case of deposits into the
Supplemental Interest Trust, on the Derivative Payment Date), the Securities
Administrator shall make the disbursements and transfers from amounts then
on
deposit in the Distribution Account and from amounts that are available for
payment to the Swap Counterparty, and shall allocate such amounts to the
interests issued in respect of each REMIC created pursuant to this Agreement
and
shall distribute such amounts in the following order of priority and to the
extent of the Available Funds remaining:
(i) to
the
Supplemental Interest Trust and the holders of each Class of LIBOR
Certificates in the following order of priority:
(A) from
the
Interest Remittance Amount, for deposit into the Supplemental Interest Trust
Account, the amount of any Net Derivative Payment or Swap Termination Payment
(other than a Swap Termination Payment resulting from a Swap Counterparty
Trigger Event) owed to the Derivative Counterparty, including any such amounts
remaining unpaid from previous Distribution Dates;
(B) from
the
remaining Interest Remittance Amount, to the Class A-1, Class A-2, Class A-3
and
Class A-4 Certificates, pro
rata,
the
Senior Interest Payment Amount for each such Class of Certificates on such
Distribution Date; and
(C) from
any
remaining Interest Remittance Amount after taking into account the distributions
made under clauses (i)(A) and (i)(B) above, sequentially, to each Class of
Class
M Certificates, in ascending order by numerical Class designation, the Interest
Payment Amount for such Class and such Distribution Date;
(ii) (A) on
each Distribution Date (or, in the case of deposits into the Supplemental
Interest Trust, on the Derivative Payment Date) (1) before the Stepdown
Date or (2) with respect to which a Trigger Event is in effect, to the
Supplemental Interest Trust and to the holders of the Class or Classes of
LIBOR Certificates then entitled to distributions of principal as set forth
below, from amounts remaining on deposit in the Distribution Account after
making distributions pursuant to paragraph (a)(i) of this Section 4.02, an
amount equal to, in the aggregate, the Principal Payment Amount, in the
following amounts and order of priority:
(a) for
deposit into the Supplemental Interest Trust Account, any Net Derivative Payment
or Swap Termination Payment (other than a Swap Termination Payment resulting
from a Swap Counterparty Trigger Event) owed to the Derivative Counterparty
to
the extent unpaid pursuant to clause (a)(i)(A) of this Section
4.02;
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(b) to
the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, the Principal
Payment Amount, until their respective Class Certificate Balances are reduced
to
zero, allocated as described in Section 4.02(c);
(c) sequentially,
to each Class of Class M Certificates, in ascending order by numerical
Class designation, until their respective Class Certificate Balances are
reduced to zero; and
(B) on
each
Distribution Date (or, in the case of deposits into the Supplemental Interest
Trust, on the Derivative Payment Date) on and after the Stepdown Date and as
long as a Trigger Event is not in effect, to the Supplemental Interest Trust
and
to the holders of the Class or Classes of LIBOR Certificates then entitled
to distributions of principal, from amounts remaining on deposit in the
Distribution Account after making distributions pursuant to paragraph (a)(i)
of
this Section 4.02, an amount equal to, in the aggregate, the Principal Payment
Amount, in the following amounts and order of priority:
(a) for
deposit into the Supplemental Interest Trust Account, any Net Derivative Payment
or Swap Termination Payment (other than a Swap Termination Payment resulting
from a Swap Counterparty Trigger Event) owed to the Derivative Counterparty
to
the extent unpaid pursuant to clause (a)(i)(A) of this Section
4.02;
(b) to
the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, the Senior Principal
Payment Amount, until their respective Class Certificate Balances are reduced
to
zero, allocated as described in Section 4.02(c);
(c) sequentially,
to each Class of Class M Certificates, in the order set forth in the
definition of Class M Principal Payment Amount, the Class M Principal
Payment Amount for the related Class of Class M certificates, until their
respective Class Certificate Balances are reduced to zero;
(iii) any
amounts remaining after the distributions in paragraphs (i) and (ii) of
this Section 4.02(a), plus, as specifically indicated below, from amounts on
deposit in the Excess Reserve Fund Account, shall be distributed in the
following order of priority:
(A) to
the
extent not paid pursuant to Section 4.02(a)(i)(B), to the Class A Certificates,
any Senior Interest Payment Amount, allocated pro
rata
among
such Classes in proportion to the amount of the unpaid Senior Interest Payment
Amount for such Classes;
(B) sequentially,
to each Class of Class M Certificates, in ascending order by numerical
Class designation, to the extent not paid for such Distribution Date pursuant
to
Section 4.02(a)(i)(C), any Interest Payment Amount for any such
Class;
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(C) sequentially,
to each Class of Class M Certificates, in ascending order by numerical Class
designation, first,
any
Interest Carry Forward Amount for that Class, and second,
any
Unpaid Realized Loss Amount for that Class;
(D) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment for such
Distribution Date;
(E) from
amounts on deposit in the Excess Reserve Fund Account with respect to such
Distribution Date, an amount equal to any unpaid Basis Risk Carryover Amount
with respect to each Class of LIBOR Certificates for such Distribution Date,
allocated in the same order and priority as set forth in clauses (a)(i)(B)
and
(a)(i)(C) of this Section 4.02;
(F) to
the
Credit Risk Manager, the Credit Risk Manager Fee;
(G) On
the
Distribution Date occurring in June 2010 (or the next succeeding Distribution
Date on which sufficient funds are available in the Distribution Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(H) to
the
Swap Counterparty, any Swap Termination Payment resulting from a Swap
Counterparty Trigger Event;
(I) to
the
extent not distributed pursuant to Sections 4.02(a)(iii)(A) through (H), to
the holders of the Class X Certificates, the remainder of the Class X
Distributable Amount; and
(J) to
the
holders of the Class R Certificates, any remaining amount;
If
on any
Distribution Date, as a result of the foregoing allocation rules, any
Class of Class A Certificates does not receive in full the related
Senior Interest Payment Amount, then such shortfall will be allocated to the
Holders of such Class, with interest thereon, on future Distribution Dates,
as
Interest Carry Forward Amounts, subject to the priorities described
above.
(b) On
each
Distribution Date, prior to any distributions on any other Class of
Certificates, all amounts representing Prepayment Charges from the Mortgage
Loans received during the related Prepayment Period shall be distributed by
the
Securities Administrator to the holders of the Class P
Certificates.
(c) Any
principal distributions allocated to the Certificates will be allocated in
the
following order of priority:
(i) to
the
Class A-1 Certificates, until the Class Certificate Balance of such Class has
been reduced to zero;
(ii)
to the
Class A-2 Certificates, until the Class Certificate Balance of such Class has
been reduced to zero;
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(iii) to
the
Class A-3 Certificates, until the Class Certificate Balance of such Class has
been reduced to zero; and
(iv) to
the
Class A-4 Certificates, until the Class Certificate Balance of such Class has
been reduced to zero.
Notwithstanding
the above paragraph, on and after the Distribution Date on which the aggregate
Class Certificate Balances of the Class M Certificates and the
Overcollateralization Amount have been reduced to zero, any principal
distributions allocated to the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates are required to be allocated pro
rata
among
such Classes of Certificates, based upon their respective Class Certificate
Balances.
(d) On
any
Distribution Date, any Relief Act Shortfalls and Net Prepayment Interest
Shortfalls for such Distribution Date shall be allocated by the Securities
Administrator as a reduction in the following order:
(i) First,
to the
amount of interest payable to the Class X Certificates; and
(ii) Second,
pro
rata,
as a
reduction of the Interest Payment Amount for the Class A and Class M
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled.
(e) On
any
Distribution Date (or any Derivative Payment Date, as applicable), the
Securities Administrator shall distribute any Swap Amount and Cap Amount for
such date as follows:
(i) to
the
Derivative Counterparty, any Net Derivative Payment owed to the Derivative
Counterparty pursuant to the Swap Agreement for such Derivative Payment Date
to
the extent not previously paid pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A) or 4.02(a)(ii)(B);
(ii) to
the
Swap Counterparty, any Swap Termination Payment not resulting from a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement for such Derivative Payment Date;
(iii) to
the
extent not paid and in the order of priority provided in clauses (a)(iii)(A)
and
(a)(iii)(B) of this Section 4.02, to the Class A Certificates any Senior
Interest Payment Amounts, and to the Class M Certificates, in ascending order
by
numerical class designation, any Interest Payment Amounts;
(iv) to
the
Class A Certificates and the Class M Certificates in the order of priority
set
forth in clauses (a)(ii)(A)(b), (a)(ii)(A)(c), (a)(ii)(B)(b) and (a)(ii)(B)(c)
of this Section 4.02, an amount necessary to maintain the Overcollateralization
Target Amount for such Distribution Date;
(v) to
the
extent not paid and in the order of priority provided in clause (a)(iii)(C)
of
this Section 4.02, sequentially, to each Class of Class M Certificates, in
ascending order by numerical Class designation, first,
any
Interest Carry Forward Amount for that Class, and second,
any
Unpaid Realized Loss Amount for that Class;
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(vi) to
the
extent not paid and in the order of priority provided in clause (a)(iii)(D)
of
this Section 4.02, to the Excess Reserve Fund Account, the amount of any Basis
Risk Payment for such Distribution Date;
(vii) to
the
extent not paid and in the order of priority provided in clause (a)(iii)(E)
of
this Section 4.02, to the LIBOR Certificates, any remaining unpaid Basis Risk
Carryover Amount with respect to such Certificates for that Distribution Date,
allocated in the same order and priority as set forth in clauses (a)(i)(B)
and
(a)(i)(C) of this Section 4.02;
(viii) to
the
extent not paid and in the order of priority provided in clause (a)(iii)(F)
of
this Section 4.02, to the Credit Risk Manager, the Credit Risk Manager
Fee;
(ix) if
applicable, to the Swap Termination Receipts Account or Cap Termination Receipts
Account for application to the purchase of a replacement swap agreement or
replacement cap agreement pursuant to Section 4.08;
(x) to
the
extent not paid and in the order of priority provided in clause (a)(iii)(G)
of
this Section 4.02, to the Swap Counterparty, any Swap Termination Payment
resulting from a Swap Counterparty Trigger Event; and
(xi) to
the
holders of the Class X Certificates, the remainder of the Class X
Distributable Amount.
With
respect to each Distribution Date, the sum of all amounts distributed pursuant
to priorities (e)(iv) and (e)(v) second
of this
Section 4.02(e) cannot exceed the amount of cumulative Realized Losses incurred
up to such Distribution Date minus any distributions made on previous
Distribution Dates pursuant to such priorities.
Section
4.03 Monthly
Statements to Certificateholders.
(a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Master Servicer, the Servicers, the
Credit Risk Manager, the Depositor, the Trustee, the Derivative Counterparty
and
each Rating Agency a statement, based on information provided by the Servicers
and the Derivative Counterparty, setting forth with respect to the related
distribution:
(i) the
amount thereof allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments, Liquidation Proceeds and Subsequent
Recoveries;
(ii) the
amount thereof allocable to interest, any Interest Carry Forward Amounts
included in such distribution and any remaining Interest Carry Forward Amounts
after giving effect to such distribution, any Basis Risk Carryover Amount for
such Distribution Date and the amount of all Basis Risk Carryover Amount covered
by withdrawals from the Excess Reserve Fund Account on such Distribution
Date;
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(iii) if
the
distribution to the Holders of such Class of Certificates is less than the
full amount that would be distributable to such Holders if there were sufficient
funds available therefor, the amount of the shortfall and the allocation thereof
as between principal and interest, including any Basis Risk Carryover Amount
not
covered by amounts in the Excess Reserve Fund Account;
(iv) the
Class Certificate Balance of each Class of Certificates after giving
effect to the distribution of principal on such Distribution Date;
(v) the
Pool
Stated Principal Balance for the following Distribution Date;
(vi) the
amount of the Expense Fees (in the aggregate and separately stated) paid to
or
retained by the Servicers, any Subservicer and the Master Servicer with respect
to such Distribution Date;
(vii) the
Interest Rate for each such Class of Certificates) with respect to such
Distribution Date;
(viii) the
amount of P&I Advances included in the distribution on such Distribution
Date and the aggregate amount of P&I Advances outstanding as of the close of
business on the Determination Date immediately preceding such Distribution
Date;
(ix) the
number and aggregate outstanding principal balances of Mortgage Loans (except
those Mortgage Loans that are liquidated as of the end of the related Prepayment
Period) (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have
become REO Property, (3) that are in foreclosure and (4) that are in
bankruptcy, in each case as of the close of business on the last Business Day
of
the immediately preceding month;
(x) with
respect to Mortgage Loans that became REO Properties during the preceding
calendar month, the number and the aggregate Stated Principal Balance of such
Mortgage Loans as of the close of business on the Determination Date preceding
such Distribution Date and the date of acquisition thereof;
(xi) the
total
number and aggregate principal balance of any REO Properties as of the close
of
business on the Determination Date preceding such Distribution
Date;
(xii) whether
a
Trigger Event has occurred and is continuing;
(xiii) the
amount on deposit in the Excess Reserve Fund Account (after giving effect to
distributions on such Distribution Date);
(xiv) in
the
aggregate and for each Class of Certificates, the aggregate amount of
Applied Realized Loss Amounts incurred during the preceding calendar month
and
aggregate Applied Realized Loss Amounts through such Distribution
Date;
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(xv) the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation thereof to the Certificateholders with respect to Applied Realized
Loss Amounts and Interest Carry Forward Amounts;
(xvi) the
Overcollateralization Amount and Overcollateralization Target
Amount;
(xvii) Prepayment
Charges collected by the Servicers;
(xviii) the
Cumulative Loss Percentage and the Rolling Three Month Delinquency
Rate;
(xix) the
amount of Credit Risk Management Fees paid during the Due Period to which such
Distribution Date relates; and
(xx) the
amount of any Net Derivative Payment made to the Supplemental Interest Trust
pursuant to Section 4.02, any Net Derivative Payment made to the Derivative
Counterparty pursuant to Section 4.02, any Swap Termination Payment or Cap
Termination Payment made to the Supplemental Interest Trust pursuant to Section
4.02 and any Swap Termination Payment made to the Swap Counterparty pursuant
to
Section 4.02.
(b) For
purposes of preparing the Monthly Statement, delinquencies shall be determined
and reported by the Master Servicer based on the so-called “OTS” methodology
irrespective of the method for determining delinquencies utilized by the
Servicers on mortgage loans similar to the Mortgage Loans. By way of example,
a
Mortgage Loan would be delinquent with respect to a Scheduled Payment due on
a
Due Date if such Scheduled Payment is not made by the close of business on
the
Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be more than
30-days Delinquent with respect to such Scheduled Payment if such Scheduled
Payment were not made by the close of business on the Mortgage Loan’s second
succeeding Due Date.
(c) The
Securities Administrator’s responsibility for making available the above
statement to the Certificateholders, each Rating Agency, the Master Servicer,
each Servicer, the Trustee and the Depositor is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and
the Servicers. The Securities Administrator will provide the above statement
via
the Securities Administrator’s internet website. The Securities Administrator’s
website will initially be located at xxxxx://xxx.xxxxxxx.xxx
and
assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution method are entitled to have a paper copy mailed
to
them via first Class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the manner
in
which the above statement is distributed in order to make such distribution
more
convenient and/or more accessible, and the Securities Administrator shall
provide timely and adequate notification to the Certificateholders and the
parties hereto regarding any such changes. A paper copy of the statement will
also be made available upon request.
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(d) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon request, cause to be furnished to each Person who
at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vi)
of this Section 4.03 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall have
previously been provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
Section
4.04 Certain
Matters Relating to the Determination of LIBOR.
LIBOR
shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the LIBOR Certificates are paid in full,
the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference
Banks
(after consultation with the Depositor). Each “Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or
be
under common control with, the Securities Administrator and shall have an
established place of business in London. If any such Reference Bank should
be
unwilling or unable to act as such or if the Securities Administrator should
terminate its appointment as Reference Bank, the Securities Administrator shall
promptly appoint or cause to be appointed another Reference Bank (after
consultation with the Depositor). The Securities Administrator shall have no
liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its
reasonable control.
The
Interest Rate for each Class of LIBOR Certificates for each Interest
Accrual Period shall be determined by the Securities Administrator on each
LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Securities Administrator shall not have any liability
or responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided
for
in this Section 4.04 and the definition of LIBOR. The establishment of
LIBOR and each Interest Rate for the LIBOR Certificates by the Securities
Administrator shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
Section
4.05 Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Class M Certificates then outstanding in
reduction of the Class Certificate Balance thereof.
Section
4.06 Supplemental
Interest Trust. (a)
A
separate trust is hereby established (the “Supplemental
Interest Trust”),
the
corpus of which shall be held by the Supplemental Interest Trust Trustee for
the
benefit of the Class X Certificateholders. The Securities Administrator is
hereby appointed Supplemental Interest Trust Trustee. The Supplemental Interest
Trust Trustee shall establish an account (the “Supplemental Interest Trust
Account”) consisting of two sub-accounts (the “Swap
Account”
and
the
“Cap
Account,”
respectively), into each of which the Depositor shall deposit $500 on the
Closing Date. The Supplemental Interest Trust Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Securities Administrator held pursuant to this Agreement.
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(b) In
addition, the Supplemental Interest Trust Trustee shall establish a collateral
account (the “Collateral
Account”).
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 Securities
Administrator held pursuant to this Agreement.
(c) The
Supplemental Interest Trust Trustee shall deposit into the Swap Account any
Net
Derivative Payment required pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A)(a) and 4.02(a)(ii)(B)(a), any Swap Termination Payment required
pursuant to Sections 4.02(a)(i)(A), 4.02(a)(ii)(A)(a), 4.02(a)(ii)(B)(a) and
4.02(a)(iii)(G), and any amounts received from the Swap Counterparty under
the
Swap Agreement, and shall distribute from the Supplemental Interest Trust
Account any Net Derivative Payment required pursuant to Section 4.02(e)(i)
or
any Swap Termination Payment required pursuant to Sections 4.02(e)(ii) or
4.02(e)(x), as applicable.
(d) The
Supplemental Interest Trust Trustee shall deposit into the Cap Account any
amounts received from the Cap Counterparty under the Cap Agreement.
(e) Funds
in
the Swap Account shall be invested in Permitted Investments constituting time
deposits under clause (ii) of the definition thereof. Any earnings on such
amounts shall be distributed on each Distribution Date pursuant to Section
4.02(e). The Class X Certificates shall evidence ownership of the Swap Account
for federal income tax purposes and the Holder thereof shall direct the
Supplemental Interest Trust Trustee, in writing, as to investment of amounts
on
deposit therein. The Sponsor 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 Xxxxx Fargo Advantage Prime Investment
Money
Market Fund or a 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 4.02(e) on the following Distribution
Date.
(f) Funds
in
the Cap Account shall be invested in Permitted Investments constituting time
deposits under clause (ii) of the definition thereof. Any earnings on such
amounts shall be distributed on each Distribution Date pursuant to Section
4.02(e). The Class X Certificates shall evidence ownership of the Cap Account
for federal income tax purposes and the Holder thereof shall direct the
Supplemental Interest Trust Trustee, in writing, as to investment of amounts
on
deposit therein. The Sponsor 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 Cap Account,
such
funds shall be invested in the Xxxxx Fargo Advantage Prime Investment Money
Market Fund or a comparable investment vehicle. Any amounts on deposit in the
Cap Account in excess of the Cap Amount on any Distribution Date shall be held
for distribution pursuant to Section 4.02(e) on the following Distribution
Date.
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(g) Funds
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 Permitted Investments at the
written direction of the Cap Counterparty and/or Swap Counterparty, as
applicable. Any interest earnings on such amounts shall be remitted to the
Cap
Counterparty and/or Swap Counterparty, as applicable, pursuant to the terms
of
the Credit Support Annex. The Supplemental Interest Trust Trustee shall not
be
liable for any losses incurred on such investments. In the absence of prior
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 Xxxxx Fargo Advantage Prime Investment Money Market Fund or a comparable
investment vehicle. On the Distribution Date immediately following a Swap
Payment Date where 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 4.02(e). On the Distribution Date
where a shortfall exists with respect to Cap Amounts owed by the Cap
Counterparty as a result of its failure to make payments pursuant to the Cap
Agreement, amounts necessary to cover such shortfall shall be removed from
the
Collateral Account, remitted to the Cap Account and distributed as all or a
portion of such Cap Amount pursuant to Section 4.02(e). 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 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
(h) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account or
the
Cap Account shall be distributed pursuant to the priorities set forth in Section
4.02(e).
(i) 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 (i) there is more than one Class X Certificateholder or
(ii) 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. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
(j) Any
obligation of the Securities Administrator with respect to the Supplemental
Interest Trust under the Swap Agreement or Cap Agreement shall be deemed to
be
an obligation of the Supplemental Interest Trust.
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(k) In
the
event that the Swap Counterparty or the Cap Counterparty fails to perform any
of
its obligations under the Swap Agreement and the Cap Agreement, respectively,
(including, without limitation, its obligations to make any payment or transfer
collateral), or breaches any of its representations and warranties under the
Swap Agreement or the 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 and the Cap Agreement), the
Supplemental Interest Trust Trustee shall, no later than the next Business
Day
following such failure, breach or occurrence, notify the Swap Counterparty
or
Cap Counterparty, as applicable, and make any demand for payment pursuant to
the
Swap Agreement or Cap Agreement, as applicable. In the event that the Swap
Counterparty’s or Cap Counterparty’s obligations 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 Cap Agreement, as applicable, the Supplemental Interest Trust Trustee
shall, 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
4.07 Rights
of the Swap Counterparty. The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right to enforce
its
rights under this Agreement, which rights include but are not limited to the
obligation of the Supplemental Interest Trust Trustee (A) to deposit any Net
Derivative Payment required pursuant to Sections 4.02(a)(i)(A),
4.02(a)(ii)(A)(a) and 4.02(a)(ii)(B)(a), and any Swap Termination Payment
required pursuant to Sections 4.02(a)(i)(A), 4.02(a)(ii)(A)(a),
4.02(a)(ii)(B)(a) and 4.02(a)(iii)(H), into the Supplemental Interest Trust
Account (B) to pay any Net Derivative Payment required pursuant to Section
4.02(e)(i) or Swap Termination Payment required pursuant to Sections 4.02(e)(ii)
or Section 4.02(e)(x), as applicable, to the Swap Counterparty and (C) to
establish and maintain the Swap Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant to
Section 4.06. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be given
either at law or in equity.
Section
4.08 Termination
Receipts.(a)(i)
In
the event of a “Termination Event” as defined under the Swap Agreement, (a) any
Swap Termination Payment made by the Swap Counterparty to the Swap Account
and
paid pursuant to Section 4.02(e)(ix) (“Swap
Termination Receipts”)
will
be deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Securities Administrator (the “Swap
Termination Receipts Account”)
and
(b) 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 Securities Administrator (the “Swap
Replacement Receipts Account”).
The
Securities Administrator 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 Securities Administrator as permitted pursuant to clause
(ii) of the definition of Permitted Investments or as otherwise directed in
writing by a majority of the Certificateholders. All such Permitted Investments
must be payable on demand or mature on a Distribution Date or such other date
as
directed by the Certificateholders. All such Permitted Investments will be
made
in the name of the Supplemental Interest Trust Trustee (in its capacity as
such)
or its nominee. All income and gain realized from any such investment shall
be
deposited in the Termination Receipts Account or the Replacement Receipts
Account, as applicable, and all losses, if any, shall be borne by the related
account.
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(ii) Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for a replacement swap agreement(s)
or
procure a replacement guarantor, if applicable, and the Securities Administrator
shall promptly, with the assistance and cooperation of the Depositor, use
amounts on deposit in the Swap Termination Receipts Account, if necessary,
to
enter into any 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 Supplemental Interest Trust Trustee 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 Swap
Agreement, be paid to the Class X Certificates.
(b) (i)
In
the event of a “Termination Event” as defined under the Cap Agreement, (a) any
Cap Termination Payment made by the Cap Counterparty to the Cap Account and
paid
pursuant to Section 4.02(e)(ix) (“Cap Termination Receipts”) shall be deposited
in a segregated non-interest bearing account which shall be an Eligible Account
established by the Securities Administrator (the “Cap Termination Receipts
Account”) and (b) 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 Securities
Administrator (the “Cap Replacement Receipts Account”). The Securities
Administrator shall invest, or cause to be invested, funds held in the Cap
Termination Receipts Account in time deposits of the Securities Administrator
as
permitted by clause (ii) of the definition of Permitted Investments or as
otherwise directed in writing by a majority of the Certificateholders. All
such
Permitted Investments must be payable on demand or mature on a Cap Payment
Date,
a Distribution Date or such other date as directed by the Certificateholders.
All such Permitted Investments shall be made in the name of the Supplemental
Interest Trust Trustee (in its capacity as such) 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.
(ii) Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for one or more replacement interest
rate cap agreements and the Securities Administrator 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 any such replacement
interest rate cap agreement which shall be executed and delivered by the
Supplemental Interest Trust Trustee upon receipt of written confirmation from
each Rating Agency that any such replacement interest rate cap agreement 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.
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ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount) and aggregate
denominations per Class set forth in the Preliminary
Statement.
The
Depositor hereby directs the Securities Administrator to register the
Class X, Class X and Class R Certificates in the name of HSBC
Securities (USA) Inc. or its designee. On a date as to which the Depositor
notifies the Securities Administrator, the Securities Administrator shall
transfer the Class X and Class P Certificates in the name of the NIM
Trustee, or such other name or names as the Depositor shall request, and to
deliver the Class X and Class P Certificates to the NIM Trustee or to
such other Person or Persons as the Depositor shall request.
Subject
to Section 11.02 respecting the final distribution on the Certificates, on
each Distribution Date the Securities Administrator shall make distributions
to
each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder
at a
bank or other entity having appropriate facilities therefor, if such Holder
has
so notified the Securities Administrator at least five Business Days prior
to
the related Record Date or (y) by check mailed by first Class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register; provided,
however,
so long
as such Certificate is a Book-Entry Certificate, all distributions on such
Certificate will be made through the Depository or the Depository
Participant.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that
such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to
any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
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Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe,
the Securities Administrator shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by
a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In determining whether a transfer
is being made pursuant to an effective registration statement, the Securities
Administrator shall be entitled to rely solely upon a written notice to such
effect from the Depositor. Except with respect to (i) the transfer of the
Class X, Class P or Class R Certificates to the Depositor or an
Affiliate of the Depositor, (ii) the transfer of the Class X or
Class P Certificates to the NIM Issuer or the NIM Trustee, or (iii) a
transfer of the Class X or Class P Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor, in the event
that a transfer of a Private Certificate which is a Physical Certificate is
to
be made in reliance upon an exemption from the Securities Act and such laws,
in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer shall certify to the
Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit H (the “Transferor
Certificate”)
and
either (i) there shall be delivered to the Securities Administrator a
letter in substantially the form of Exhibit I-A (the “Rule 144A
Investment Letter”)
or
Exhibit I-B (the “Regulation
S Investment Letter”)
or
(ii) there shall be delivered to the Securities Administrator at the
expense of the transferor an Opinion of Counsel stating that such transfer
may
be made without registration under the Securities Act. In the event that a
transfer of a Private Certificate which is a Book-Entry Certificate is to be
made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of
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such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Investment
Letter or Regulation S Investment Letter, as applicable, in respect of such
Certificate, in each case as if such Certificate were evidenced by a Physical
Certificate. As directed by the Depositor, the Securities Administrator shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for
transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by
Rule 144A. The Depositor, the Master Servicer and the Trustee shall
cooperate with the Securities Administrator in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Securities Administrator such information regarding the Certificates, the
Mortgage Loans and other matters regarding the Trust Fund as the Securities
Administrator shall reasonably determine to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Trustee, each Servicer, the Master Servicer and the Depositor
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
Except
with respect to (i) the transfer of the Class X, Class P or
Class R Certificates to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class X or Class P Certificates to the
NIM Issuer or the NIM Trustee, or (iii) a transfer of the Class X or
Class P Certificates from the NIM Issuer or the NIM Trustee to the
Depositor or an Affiliate of the Depositor, no transfer of an ERISA-Restricted
Certificate shall be made unless the Securities Administrator shall have
received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator (in the event such Certificate is a Private Certificate
or a Residual Certificate, such requirement is satisfied only by the Securities
Administrator’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I-A or Exhibit I-B), to the effect
that such transferee is not an employee benefit plan or arrangement subject
to
Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer, or (ii) in the case
of an ERISA-Restricted Certificate (other than a Residual Certificate, Class
X
Certificate or a Class P Certificate) that has been the subject of an
ERISA-Qualifying Underwriting, and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”)
95-60)
and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60 or (iii) in the case of any such
ERISA-Restricted Certificate other than a Residual Certificate, Class X
Certificate or Class P Certificate presented for registration in the name
of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions
of any subsequent enactments), or a plan subject to Similar Law, or a trustee
of
any such plan or any other person acting on behalf of any such plan or
arrangement or using such plan’s or arrangement’s assets, an Opinion of Counsel
satisfactory to the Securities Administrator, which Opinion of Counsel shall
not
be an expense of the Depositor, the Trustee, the Master Servicer, any Servicer,
the Securities Administrator or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the
Code or any Similar Law and will not subject the Trustee, the Depositor, the
Securities Administrator, the Master Servicer or any Servicer to any obligation
in addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Physical Certificate or a Residual Certificate, in
the
event the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee’s (including an initial acquirer’s)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate that is a Physical Certificate, other than a Class P
Certificate, Class X Certificate or Residual Certificate, to or on behalf of
an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Securities Administrator of a representation letter or an
Opinion of Counsel satisfactory to the Securities Administrator as described
above shall be void and of no effect and (b) any purported transfer of a
Class P Certificate, Class X Certificate or Residual Certificate to a
transferee that does not make the representation in clause (i) above
shall be void and of no effect.
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None
of
the Class R, Class X or Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to
Section 4975 of the Code, or any plan subject to any Similar Law or any
person investing on behalf or with plan assets of such plan.
No
transfer of an ERISA-Restricted Trust Certificate prior to the termination
of
the Cap Agreement and the Swap Agreement shall be made unless the Securities
Administrator shall have received a representation letter from the transferee
of
such Certificate, substantially in the form set forth in Exhibit I-A or Exhibit
I-B, to the effect that either (i) such transferee is neither an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan subject
to
Section 4975 of the Code or a plan subject to Similar Law 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
non-fiduciary 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. Notwithstanding anything else to
the
contrary herein, any purported transfer of an ERISA-Restricted Trust Certificate
prior to the termination of the Cap Agreement and the Swap Agreement on behalf
of such Plan without the delivery to the Securities Administrator 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, the transferee
will be deemed to have made a representation as provided in clause (i) or (ii)
of this paragraph, as applicable.
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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 Securities
Administrator, the Trustee, each Servicer 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 Securities Administrator shall be under no liability to any Person for
any
registration of transfer of any ERISA-Restricted Certificate or ERISA-Restricted
Trust Certificate that is in fact not permitted by this Section 5.02(b) or
for making any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as, in the case of a Physical Certificate, the transfer was
registered by the Securities Administrator in accordance with the foregoing
requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form attached hereto as
Exhibit G;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is a Non-Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Securities Administrator shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(a) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or taking
any
other action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and the Rule 144A Investment Letter. The
Securities Administrator shall be entitled but not obligated to recover from
any
Holder of a Residual Certificate that was in fact a Non-Permitted Transferee
at
the time it became a Holder or, at such subsequent time as it became a
Non-Permitted Transferee, all payments made on such Residual Certificate at
and
after either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator to
the
last preceding Permitted Transferee of such Certificate; and
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(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Securities Administrator, all information necessary to compute
any tax imposed under Section 860E(e) of the Code as a result of a Transfer
of an Ownership Interest in a Residual Certificate to any Holder who is a
Non-Permitted Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the
Trustee, the Securities Administrator or any Servicer, to the effect that the
elimination of such restrictions will not cause any REMIC created hereunder
to
fail to qualify as a REMIC at any time that the Certificates are outstanding
or
result in the imposition of any tax on the Trust Fund, a Certificateholder
or
another Person. Each Person holding or acquiring any Ownership Interest in
a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly
or
indirectly, to a Person that is a Non-Permitted Transferee and (b) to
provide for a means to compel the Transfer of a Residual Certificate which
is
held by a Person that is a Non-Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual and customary fees, charges and expenses from its Depository Participants;
(v) the Securities Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
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All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the
Securities Administrator or the Depositor is unable to locate a qualified
successor, or (y) the Depositor notifies the Depository (and the Securities
Administrator consents) of its intent to terminate the book-entry system through
the Depository and, upon receipt of notice of such intent from the Depository,
the Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Securities Administrator
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully registered
Certificates (the “Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. None of the
Servicers, the Depositor or the Securities Administrator shall be liable for
any
delay in delivery of such instruction and each may conclusively rely on, and
shall be protected in relying on, such instructions. The Depositor shall provide
the Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided,
that
the Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each
Private Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Securities Administrator, duly executed
by
the Certificateholder or his attorney duly authorized in writing. Each
Certificate presented or surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Securities Administrator
in accordance with its customary practice. No service charge shall be made
for
any registration of transfer or exchange of Private Certificates, but the
Securities Administrator may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Private Certificates.
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Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and
(b) there is delivered to the Depositor, the Securities Administrator and
the Trustee such security or indemnity as may be required by them to hold each
of them harmless, then, in the absence of notice to the Securities Administrator
that such Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with
the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator 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 Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this
Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section
5.04 Persons
Deemed Owners.
The
Trustee, the Depositor, the Securities Administrator and any agent of the
Trustee, the Depositor or the Securities Administrator may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all
other purposes whatsoever, and neither the Trustee, the Depositor, the
Securities Administrator nor any agent of the Trustee, the Depositor or the
Securities Administrator shall be affected by any notice to the
contrary.
Section
5.05 Access
to List of Certificateholders’ Names and Addresses.
If
three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and (c) provide a copy of
the communication which such Certificateholders propose to transmit, or if
the
Depositor or any Servicer shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
Business Days after the receipt of such request, provide the Depositor, the
applicable Servicer or such Certificateholders at such recipients’ expense the
most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder,
by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless
of
the source from which such information was derived.
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Section
5.06 Maintenance
of Office or Agency.
The
Securities Administrator will maintain or cause to be maintained at its expense
an office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange. The Securities Administrator initially
designates its offices located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Securities Administrator
shall give prompt written notice to the Certificateholders of any change in
such
location of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR
Section
6.01 Liabilities
of the Depositor.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by it
herein.
Section
6.02 Merger
or Consolidation of the Depositor.
(a) The Depositor will keep in full effect its existence, rights and
franchises as a corporation, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
(b) Any
Person into which the Depositor may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Depositor shall be
a
party, or any person succeeding to the business of the Depositor, shall be
the
successor of the Depositor hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section
6.03 Limitation
on Liability of the Depositor and Others. Neither
the Depositor nor any of its respective directors, officers, employees or
agents, shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or negligence (or gross negligence
in the case of the Depositor) in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, its
Affiliates and any of their respective directors, officers, employees or agents
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, its Affiliates, and any of their respective directors, officers,
employees or agents shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement or the Certificates other than
any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement and any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. The Depositor shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided,
however,
that
the Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions pursuant to Section 2.03 for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto and interests
of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be
expenses, costs and liabilities of the Trust Fund, and the Depositor shall
be
entitled to be reimbursed therefor out of the Distribution
Account.
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ARTICLE
VII
DEFAULT
Section
7.01 Master
Servicer to Act; Appointment of Successor.
(a) The
Master Servicer or the Trustee (as successor master servicer), as applicable,
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. Upon termination of a Servicer under the applicable Servicing
Agreement, the Master Servicer or the Trustee (as successor master servicer),
as
applicable, shall, subject to the rights of the Master Servicer or the Trustee
(as successor master servicer), as applicable, to appoint a successor servicer
pursuant to this Section 7.01, be the successor to such Servicer in its capacity
as servicer under the applicable Servicing Agreement, provided,
however,
that
the Master Servicer or the Trustee (as successor master servicer), as
applicable, shall not be (i) liable for losses of the predecessor Servicer
with
respect to such predecessor’s investment of funds in its Collection Account;
(ii) obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including but not limited to repurchases or substitutions pursuant
to
Section 2.03, (iii) responsible for expenses of the predecessor servicer related
to any repurchase or substitution of Mortgage Loans hereunder, including but
not
limited to repurchases or substitutions pursuant to Section 2.03, (iv) deemed
to
have made any of the representations and warranties of the terminated Servicer
under the applicable Servicing Agreement or (v) liable for any obligations
of
the predecessor Servicer incurred prior to its termination. It is understood
and
acknowledged by the parties hereto that there will be a period of transition
before the transfer of servicing obligations is fully effective. Notwithstanding
the foregoing, the Master Servicer or the Trustee (as successor master
servicer), as applicable, will have a period (not to exceed 90 days) to
complete the transfer of all servicing data and correct or manipulate such
servicing data as may be required by the Master Servicer or the Trustee (as
successor master servicer), as applicable, to correct any errors or
insufficiencies in the servicing data or otherwise enable the Master Servicer
or
the Trustee (as successor master servicer), as applicable, to service the
Mortgage Loans in accordance with the applicable Servicing Agreement. Except
as
provided in Section 7.01(c) below, the Master Servicer or the Trustee (as
successor master servicer), as applicable, shall be entitled to be reimbursed
from each Servicer (or by the Trust Fund, if such Servicer is unable to fulfill
such obligation) 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 or the Trustee (as successor master servicer), as applicable,
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Master Servicer or the Trustee (as successor master servicer), as
applicable, to service the Mortgage Loans properly and
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effectively.
As compensation in its role as successor servicer, the Master Servicer or the
Trustee (as successor master servicer), as applicable, shall be entitled to
the
applicable Servicing Fee and any income on investments or gain related to the
related Collection Account. Notwithstanding the foregoing, if the Master
Servicer or the Trustee (as successor master servicer), as applicable, has
become the successor to a Servicer pursuant to an Event of Default, the Master
Servicer or the Trustee (as successor master servicer), as applicable, may,
if
it shall be unwilling to so act, or shall, if it is prohibited by applicable
law
from making P&I Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, if it is otherwise unable to so act, or at the written
request of Certificateholders entitled to at least a majority of the Voting
Rights, appoint, or petition a court of competent jurisdiction to appoint,
any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer under the applicable Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer thereunder. Any successor to a Servicer shall
be
an institution which is willing to service the Mortgage Loans and which executes
and delivers to the Depositor, the Master Servicer and the Trustee (as successor
master servicer) an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the applicable Servicer (other
than liabilities of the predecessor servicer incurred prior to its termination),
with like effect as if originally named as a party to such Servicing Agreement;
provided,
that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, as a result of such assignment and delegation. Pending appointment
of a
successor to a Servicer under any Servicing Agreement, the Master Servicer
or
the Trustee (as successor master servicer), as applicable, unless such party
is
prohibited by law from so acting, shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Master
Servicer or the Trustee (as successor master servicer), as applicable, may
make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree in accordance with the
applicable Servicing Agreement; provided,
however,
that no
such compensation shall be in excess of the applicable Servicing Fee and any
income on investments or gain related to the related Collection Account. The
Master Servicer or the Trustee (as successor master servicer), as applicable,
and such successor servicer shall take such action, consistent with this
Agreement and the applicable Servicing Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor the Trustee
(as
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 or any failure to perform, or any delay in performing,
any
duties or responsibilities hereunder, in either case caused by the failure
of
any Servicer to deliver or provide, or any delay in delivering or providing,
any
cash, information, documents or records to it.
(b) Notwithstanding
the foregoing, the parties hereto agree that the Master Servicer or the Trustee
(as successor master servicer), as applicable, in its capacity as successor
servicer, immediately shall assume all of the obligations of such terminated
Servicer to make Advances and the Master Servicer or the Trustee (as successor
master servicer), as applicable, will assume the other duties of such Servicer
as soon as practicable, but in no event later than 90 days after the Master
Servicer or the Trustee (as successor master servicer), as applicable, becomes
successor servicer pursuant to the preceding paragraph. If the Master Servicer
or the Trustee (as successor master servicer), as applicable, acts as a
successor servicer, it will have no obligation to make an Advance if it
determines in its reasonable judgment that such Advance is non-recoverable.
To
the extent that the Master Servicer or the Trustee (as successor 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 applicable
Servicer to make Advances regardless of whether such Advance is recoverable,
the
applicable Servicing Agreement may be amended to provide that the successor
servicer shall have no obligation to make an Advance if it determines in its
reasonable judgment that such Advance is non-recoverable and provides an
Officer’s Certificate to such effect to the Master Servicer and the Trustee.
Notwithstanding the foregoing, the Master Servicer or the Trustee (as successor
master servicer), as applicable, in its capacity as successor servicer, shall
not be responsible for the lack of information and/or documents that it cannot
obtain through reasonable efforts; provided,
however,
that
any failure to perform any duties or responsibilities caused by such Servicer’s
failure to provide information required by this Agreement shall not be
considered a default by the Trustee (as successor master servicer) hereunder.
In
the Trustee’s capacity as such successor, the Trustee (as successor master
servicer) shall have the same limitations on liability granted to the Servicer
under this Agreement and the related Servicing Agreement.
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(c) In
the
event that the Master Servicer or the Trustee (as successor master servicer),
as
applicable, is the terminated Servicer (except in the case where the Master
Servicer in its role as successor servicer is being terminated pursuant to
an
Event of Default caused solely by the Master Servicer as the successor servicer
and not by the predecessor Servicer’s actions or omissions), such costs shall be
paid by such prior terminated Servicer promptly upon presentation of reasonable
documentation of such costs.
Section
7.02 Notification
to Certificateholders.
(a) Upon any termination of or appointment of a successor to any
Servicer, the Securities Administrator shall give prompt written notice thereof
to Certificateholders, each Rating Agency and the Derivative
Counterparty.
(b) Within
60 days after the occurrence of any Event of Default, the Securities
Administrator shall transmit by mail to all Certificateholders, each Rating
Agency and the Derivative Counterparty notice of each such Event of Default
hereunder known to the Securities Administrator, unless such event shall have
been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01 Duties
of the Trustee.
The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care and
skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
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The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order, or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct.
Unless
an
Event of Default known to the Trustee has occurred and is
continuing:
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believes in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25.00% of the Voting Rights
of
Certificates relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred upon the Trustee under this Agreement.
Section
8.02 Certain
Matters Affecting the Trustee.
Except
as otherwise provided in Section 8.01:
(a) the
Trustee may rely upon and shall be protected in acting or refraining from acting
upon any resolution, Officer’s Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the genuineness
of
any signature of any such party or parties;
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(b) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(c) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by the Holders of Certificates evidencing
not less than 25.00% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants, custodians,
nominees or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the
Trustee shall not be required to risk or expend its own funds or otherwise incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory
to
it against such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement;
(h) unless
a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
a
Master Servicer Event of Default or an Event of Default, the Trustee shall
not
be deemed to have knowledge of a Master Servicer Event of Default or an Event
of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(j) if
the
Trustee, in its role as successor master servicer under this Agreement, assumes
the servicing or master servicing with respect to any of the Mortgage Loans,
it
shall not assume liability for the representations and warranties of a Servicer
or Master Servicer, as applicable, or for any errors or omissions of a Servicer
or Master Servicer, as applicable;
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(k) in
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available to such party in order to enable the Trustee to comply with
Applicable Law; and
(l) the
Depositor hereby authorizes and directs the Trustee to execute each of the
Servicing Agreements.
Section
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, the Cap Agreement, the Swap Agreement, or of
the
Certificates or of any Mortgage Loan or related document. The Trustee shall
not
be accountable for the use or application by the Depositor, the Master Servicer,
a Servicer, the Securities Administrator or the Derivative Counterparty of
any
funds paid to the Depositor, the Master Servicer, a Servicer, the Securities
Administrator or the Derivative Counterparty in respect of the Mortgage Loans
or
deposited in or withdrawn from any Collection Account, the Distribution Account
or any other fund or account with respect to the Certificates by the Depositor,
the Master Servicer, a Servicer, the Securities Administrator or the Derivative
Counterparty.
The
Trustee shall have no responsibility for filing or recording any financing
or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder.
Section
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.05 Trustee’s
Fees Indemnification and Expenses.
(a) As compensation for its activities under this Agreement, the Trustee
shall be paid its fee by the Master Servicer from the Master Servicer’s own
funds pursuant to a separate agreement. The Trustee shall have no lien on the
Trust Fund for the payment of such fees.
(b) The
Trustee shall be entitled to be reimbursed, from funds on deposit in the
Distribution Account, amounts sufficient to indemnify and hold harmless the
Trustee and any director, officer, employee, or agent of the Trustee against
any
loss, liability, or expense (including reasonable attorneys’ fees) incurred in
connection with any claim or legal action relating to:
(i) this
Agreement or any Servicing Agreement, and any other document executed in
connection therewith,
(ii) the
Certificates, or
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(iii) the
performance of any of the Trustee’s duties under this Agreement or any Servicing
Agreement, and any other document executed in connection therewith,
other
than any loss, liability, or expense (i) resulting from any breach of a
Servicer’s obligations in connection with its respective Servicing Agreement for
which such Servicer has performed its obligation to indemnify the Trustee,
(ii) resulting from any breach of the Sponsor’s obligations in connection
with the Master MLPISA for which the Sponsor has performed its obligation to
indemnify the Trustee, (iii) resulting from any breach of the Master
Servicer’s obligation hereunder for which the Master Servicer has performed its
obligation to indemnify the Trustee pursuant to this Agreement or
(iv) incurred because of willful misconduct, bad faith, or negligence in
the performance of any of the Trustee’s duties under this Agreement or any
Servicing Agreement. Without limiting the foregoing, except as otherwise agreed
upon in writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee’s negligence, bad faith, or
willful misconduct, the Trust Fund shall pay or reimburse the Trustee for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates,
and
(B) the
reasonable compensation, expenses, and disbursements of any accountant,
engineer, or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage them to perform services under this
Agreement.
The
Trustee’s right to indemnity and reimbursement under this Section 8.05(b) shall
survive the termination of this Agreement and the resignation or removal of
the
Trustee under this Agreement.
Except
as
otherwise provided in this Agreement or a separate letter agreement between
the
Trustee and the Depositor, the Trustee shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trustee in the
ordinary course of its duties as Trustee under this Agreement or for any other
routine expenses incurred by the Trustee; provided,
further,
that no
expense shall be reimbursed hereunder if it would not constitute an
“unanticipated expense incurred by the REMIC” within the meaning of the REMIC
Provisions.
The
Trustee shall not be (a) liable for any acts or omissions of any Servicer (other
than where the Trustee (as successor master servicer) is such Servicer), (b)
obligated to make any Advance if it is prohibited from doing so under applicable
law, (c) responsible for expenses of any Servicer (other than where the Trustee
(as successor master servicer) is such Servicer) pursuant to the terms a
Servicing Agreement, (d) liable for any amount necessary to induce any successor
servicer to act as successor servicer under a Servicing Agreement and enter
into
the transactions set forth or provided for therein.
Section
8.06 Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.07. The entity serving as Trustee may have normal banking and
trust relationships with the Depositor and its affiliates, the Master Servicer,
the Securities Administrator or any Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Depositor or any Servicer other than
the Trustee in its role as successor to the Master Servicer.
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Section
8.07 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer,
the Securities Administrator and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08,
such resignation is to take effect and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after
the giving of such notice or resignation, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with Section 8.06
and shall fail to resign after written request thereto by the Depositor, or
if
at any time the Trustee shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in
which the Trustee or the Trust Fund is located and the imposition of such tax
would be avoided by the appointment of a different trustee, then the Depositor
may remove the Trustee and, subject to the approval of the Rating Agencies,
appoint a successor trustee by written instrument, in triplicate, one copy
of
which shall be delivered to the Trustee, one copy to each of the Servicers
and
one copy to the successor trustee.
The
Holders of Certificates entitled to at least a majority of the Voting Rights
may
at any time remove the Trustee and, subject to the approval of the Rating
Agencies, appoint a successor trustee by written instrument or instruments,
in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which shall be delivered by the successor Trustee to each
Servicer, one complete set to the Trustee so removed and one complete set to
the
successor so appointed. The successor trustee shall notify each Rating Agency
of
any removal of the Trustee.
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Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in
Section 8.08.
Section
8.08 Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
each
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as trustee
herein. The Depositor and the predecessor trustee shall execute and deliver
such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.06 and its appointment does not adversely affect then the current
rating of the Certificates.
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section
8.09 Merger
or Consolidation of the Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided,
that
such corporation shall be eligible under Section 8.06 without the execution
or filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section
8.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10,
such powers, duties, obligations, rights and trusts as the Trustee may consider
appropriate. No co-trustee or separate trustee hereunder shall be required
to
meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
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Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the
extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee (as successor master servicer) under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the applicable Trust Fund or any portion thereof in any such jurisdiction)
shall
be exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c)