BEAR STEARNS ASSET BACKED SECURITIES I LLC, Depositor, EMC MORTGAGE CORPORATION, Seller and Master Servicer, and LASALLE BANK NATIONAL ASSOCIATION, Trustee POOLING AND SERVICING AGREEMENT Dated as of August 1, 2006 BEAR STEARNS MORTGAGE FUNDING TRUST...
BEAR
XXXXXXX ASSET BACKED SECURITIES I LLC,
Depositor,
EMC
MORTGAGE CORPORATION,
Seller
and Master Servicer,
and
LASALLE
BANK NATIONAL ASSOCIATION,
Trustee
____________________
Dated
as
of August 1, 2006
________________________________________
BEAR
XXXXXXX MORTGAGE FUNDING TRUST 2006-SL2
MORTGAGE-BACKED
CERTIFICATES, SERIES 2006-SL2
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
Section
1.01
|
Defined
Terms.
|
Section
1.02
|
Allocation
of Certain Interest Shortfalls.
|
ARTICLE
II
CONVEYANCE OF TRUST FUND
Section
2.01
|
Conveyance
of Trust Fund.
|
Section
2.02
|
Acceptance
of the Mortgage Loans.
|
Section
2.03
|
Representations,
Warranties and Covenants of the Master Servicer and The
Seller.
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
Section
2.06
|
Countersignature
and Delivery of Certificates.
|
Section
2.07
|
Purposes
and Powers of the Trust.
|
ARTICLE
III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section
3.01
|
The
Master Servicer to act as Master Servicer.
|
Section
3.02
|
Due-on-Sale
Clauses; Assumption Agreements.
|
Section
3.03
|
Subservicers.
|
Section
3.04
|
Documents,
Records and Funds in Possession of the Master Servicer To Be Held
for
Trustee.
|
Section
3.05
|
Maintenance
of Hazard Insurance.
|
Section
3.06
|
Presentment
of Claims and Collection of Proceeds.
|
Section
3.07
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
Section
3.08
|
Fidelity
Bond, Errors and Omissions Insurance.
|
Section
3.09
|
Realization
Upon Defaulted Mortgage Loans; Determination of Excess Liquidation
Proceeds and Realized Losses; Repurchases of Certain Mortgage
Loans.
|
Section
3.10
|
Servicing
Compensation.
|
Section
3.11
|
REO
Property.
|
Section
3.12
|
Liquidation
Reports.
|
Section
3.13
|
Annual
Statement as to Compliance.
|
Section
3.14
|
Assessments
of Compliance and Attestation Reports.
|
Section
3.15
|
Books
and Records.
|
Section
3.16
|
Reports
Filed with Securities and Exchange Commission.
|
Section
3.17
|
Intention
of the Parties and Interpretation.
|
Section
3.18
|
UCC.
|
Section
3.19
|
Optional
Purchase of Certain Mortgage Loans.
|
Section
3.20
|
Obligations
of the Master Servicer in Respect of Mortgage Rates and Scheduled
Payments.
|
Section
3.21
|
Reserve
Fund; Payments to and from Swap Administrator; Supplemental Interest
Trust.
|
Section
3.22
|
Tax
Treatment of Class IO Distribution Amounts in the Event of
Resecuritization of Class A, Class M or Class B
Certificates.
|
Section
3.23
|
Advancing
Facility.
|
ARTICLE
IV
ACCOUNTS
Section
4.01
|
Collection
of Mortgage Loan Payments; Protected Account.
|
Section
4.02
|
Permitted
Withdrawals From the Protected Account.
|
Section
4.03
|
Collection
of Taxes; Assessments and Similar Items; Escrow Accounts.
|
Section
4.04
|
Distribution
Account.
|
Section
4.05
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
ARTICLE
V
DISTRIBUTIONS AND ADVANCES
Section
5.01
|
Advances.
|
Section
5.02
|
Compensating
Interest Payments.
|
Section
5.03
|
REMIC
Distributions.
|
Section
5.04
|
Distributions.
|
Section
5.05
|
Allocation
of Realized Losses.
|
Section
5.06
|
Monthly
Statements to Certificateholders.
|
Section
5.07
|
REMIC
Designations and REMIC Distributions.
|
ARTICLE
VI
THE
CERTIFICATES
Section
6.01
|
The
Certificates.
|
Section
6.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
Section
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
Section
6.04
|
Persons
Deemed Owners.
|
Section
6.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
Section
6.06
|
Book-Entry
Certificates.
|
Section
6.07
|
Notices
to Depository.
|
Section
6.08
|
Definitive
Certificates.
|
Section
6.09
|
Maintenance
of Office or Agency.
|
ARTICLE
VII
THE
DEPOSITOR AND THE MASTER SERVICER
Section
7.01
|
Liabilities
of the Depositor and the Master Servicer.
|
Section
7.02
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
Section
7.03
|
Indemnification
of the Trustee and the Master Servicer.
|
Section
7.04
|
Limitations
on Liability of the Depositor, the Master Servicer and
Others.
|
Section
7.05
|
Master
Servicer Not to Resign.
|
Section
7.06
|
Successor
Master Servicer.
|
Section
7.07
|
Sale
and Assignment of Master Servicing.
|
ARTICLE
VIII
DEFAULT;
TERMINATION OF MASTER SERVICER
Section
8.01
|
Events
of Default.
|
Section
8.02
|
Trustee
to Act; Appointment of Successor.
|
Section
8.03
|
Notification
to Certificateholders.
|
Section
8.04
|
Waiver
of Defaults.
|
ARTICLE
IX
CONCERNING THE TRUSTEE
Section
9.01
|
Duties
of Trustee.
|
Section
9.02
|
Certain
Matters Affecting the Trustee.
|
Section
9.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
Section
9.04
|
Trustee
May Own Certificates.
|
Section
9.05
|
Trustee’s
Fees and Expenses.
|
Section
9.06
|
Eligibility
Requirements for Trustee.
|
Section
9.07
|
Insurance.
|
Section
9.08
|
Resignation
and Removal of Trustee.
|
Section
9.09
|
Successor
Trustee.
|
Section
9.10
|
Merger
or Consolidation of Trustee.
|
Section
9.11
|
Appointment
of Co-Trustee or Separate Trustee.
|
Section
9.12
|
Tax
Matters.
|
ARTICLE
X
TERMINATION
Section
10.01
|
Termination
upon Liquidation or Repurchase of all Mortgage Loans.
|
Section
10.02
|
Final
Distribution on the Certificates.
|
Section
10.03
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS PROVISIONS
Section
11.01
|
Amendment.
|
Section
11.02
|
Recordation
of Agreement; Counterparts.
|
Section
11.03
|
Governing
Law.
|
Section
11.04
|
Intention
of Parties.
|
Section
11.05
|
Notices.
|
Section
11.06
|
Severability
of Provisions.
|
Section
11.07
|
Assignment.
|
Section
11.08
|
Limitation
on Rights of Certificateholders.
|
Section
11.09
|
Inspection
and Audit Rights.
|
Section
11.10
|
Certificates
Nonassessable and Fully Paid.
|
Section
11.11
|
Third
Party Rights.
|
Exhibits
Exhibit
A-1
|
Form
of Class A Certificates
|
Exhibit
A-2
|
Form
of Class M Certificates
|
Exhibit
A-3
|
Form
of Class B Certificates
|
Exhibit
A-4
|
Form
of Class C Certificates
|
Exhibit
A-5
|
Form
of Class R Certificates
|
Exhibit
B
|
Mortgage
Loan Schedule
|
Exhibit
C
|
Form
of Transfer Affidavit
|
Exhibit
D
|
Form
of Transferor Certificate
|
Exhibit
E
|
Form
of Investment Letter (Non-Rule 144A)
|
Exhibit
F
|
Form
of Rule 144A and Related Matters Certificate
|
Exhibit
G
|
Form
of Request for Release
|
Exhibit
H
|
DTC
Letter of Representations
|
Exhibit
I
|
Schedule
of Mortgage Loans with Lost Notes
|
Exhibit
J
|
Form
of LaSalle Custodial Agreement
|
Exhibit
K
|
Form
of Xxxxx Fargo Custodial Agreement
|
Exhibit
L
|
Form
of Back-Up Certification
|
Exhibit
M
|
Form
of Mortgage Loan Purchase Agreement
|
Exhibit
N
|
Swap
Agreement
|
Exhibit
O
|
[Reserved]
|
Exhibit
P
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
Exhibit
Q
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
Exhibit
R
|
Additional
Disclosure Notification
|
POOLING
AND SERVICING AGREEMENT, dated as of August 1, 2006, among BEAR XXXXXXX ASSET
BACKED SECURITIES I LLC, a Delaware limited liability company, as depositor
(the
“Depositor”), EMC MORTGAGE CORPORATION, a Delaware corporation, as seller (in
such capacity, the “Seller”) and as master servicer (in such capacity, the
“Master Servicer”), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. On or prior to the Closing Date, the Depositor
acquired the Mortgage Loans from the Seller. On the Closing Date, the Depositor
will sell the Mortgage Loans and certain other property to the Trust Fund and
receive in consideration therefor Certificates evidencing the entire beneficial
ownership interest in the Trust Fund.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (other than the Reserve Fund, any Prepayment Charge Waiver
Amounts and, for the avoidance of doubt, the Supplemental Interest Trust, the
Swap Agreement, the Swap Account and any rights or obligations in respect of
the
Swap Administration Agreement) as a REMIC (as defined herein) for federal income
tax purposes, and such segregated pool of assets will be designated as “REMIC
I”. The Class R-1 Certificates will represent the sole class of Residual
Interests (as defined herein) in REMIC I for purposes of the REMIC Provisions
(as defined herein). The following table irrevocably sets forth the designation,
the Uncertificated REMIC I Pass-Through Rate, the initial Uncertificated
Principal Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC I
Regular Interests (as defined herein). None of the REMIC I Regular Interests
will be certificated.
Designation
|
Uncertificated
REMIC
I
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible
Maturity
Date (1)
|
|
I-1-A
|
Variable(2)
|
$
|
5,992,245.52
|
September
25, 2036
|
I-1-B
|
Variable(2)
|
$
|
5,992,245.52
|
September
25, 2036
|
I-2-A
|
Variable(2)
|
$
|
5,780,228.60
|
September
25, 2036
|
I-2-B
|
Variable(2)
|
$
|
5,780,228.60
|
September
25, 2036
|
I-3-A
|
Variable(2)
|
$
|
5,575,705.66
|
September
25, 2036
|
I-3-B
|
Variable(2)
|
$
|
5,575,705.66
|
September
25, 2036
|
I-4-A
|
Variable(2)
|
$
|
5,378,411.99
|
September
25, 2036
|
I-4-B
|
Variable(2)
|
$
|
5,378,411.99
|
September
25, 2036
|
I-5-A
|
Variable(2)
|
$
|
5,188,092.25
|
September
25, 2036
|
I-5-B
|
Variable(2)
|
$
|
5,188,092.25
|
September
25, 2036
|
I-6-A
|
Variable(2)
|
$
|
5,004,500.10
|
September
25, 2036
|
I-6-B
|
Variable(2)
|
$
|
5,004,500.10
|
September
25, 2036
|
I-7-A
|
Variable(2)
|
$
|
4,827,397.90
|
September
25, 2036
|
I-7-B
|
Variable(2)
|
$
|
4,827,397.90
|
September
25, 2036
|
I-8-A
|
Variable(2)
|
$
|
4,656,556.40
|
September
25, 2036
|
I-8-B
|
Variable(2)
|
$
|
4,656,556.40
|
September
25, 2036
|
I-9-A
|
Variable(2)
|
$
|
4,491,754.45
|
September
25, 2036
|
I-9-B
|
Variable(2)
|
$
|
4,491,754.45
|
September
25, 2036
|
I-10-A
|
Variable(2)
|
$
|
4,332,778.70
|
September
25, 2036
|
I-10-B
|
Variable(2)
|
$
|
4,332,778.70
|
September
25, 2036
|
I-11-A
|
Variable(2)
|
$
|
4,179,423.34
|
September
25, 2036
|
I-11-B
|
Variable(2)
|
$
|
4,179,423.34
|
September
25, 2036
|
I-12-A
|
Variable(2)
|
$
|
4,031,489.81
|
September
25, 2036
|
I-12-B
|
Variable(2)
|
$
|
4,031,489.81
|
September
25, 2036
|
I-13-A
|
Variable(2)
|
$
|
3,888,786.58
|
September
25, 2036
|
I-13-B
|
Variable(2)
|
$
|
3,888,786.58
|
September
25, 2036
|
I-14-A
|
Variable(2)
|
$
|
3,751,128.88
|
September
25, 2036
|
I-14-B
|
Variable(2)
|
$
|
3,751,128.88
|
September
25, 2036
|
I-15-A
|
Variable(2)
|
$
|
3,618,338.45
|
September
25, 2036
|
I-15-B
|
Variable(2)
|
$
|
3,618,338.45
|
September
25, 2036
|
I-16-A
|
Variable(2)
|
$
|
3,490,243.34
|
September
25, 2036
|
I-16-B
|
Variable(2)
|
$
|
3,490,243.34
|
September
25, 2036
|
I-17-A
|
Variable(2)
|
$
|
3,366,677.66
|
September
25, 2036
|
I-17-B
|
Variable(2)
|
$
|
3,366,677.66
|
September
25, 2036
|
I-18-A
|
Variable(2)
|
$
|
3,247,481.38
|
September
25, 2036
|
I-18-B
|
Variable(2)
|
$
|
3,247,481.38
|
September
25, 2036
|
I-19-A
|
Variable(2)
|
$
|
3,132,500.13
|
September
25, 2036
|
I-19-B
|
Variable(2)
|
$
|
3,132,500.13
|
September
25, 2036
|
I-20-A
|
Variable(2)
|
$
|
3,021,584.98
|
September
25, 2036
|
I-20-B
|
Variable(2)
|
$
|
3,021,584.98
|
September
25, 2036
|
I-21-A
|
Variable(2)
|
$
|
2,914,592.26
|
September
25, 2036
|
I-21-B
|
Variable(2)
|
$
|
2,914,592.26
|
September
25, 2036
|
I-22-A
|
Variable(2)
|
$
|
2,811,383.37
|
September
25, 2036
|
I-22-B
|
Variable(2)
|
$
|
2,811,383.37
|
September
25, 2036
|
I-23-A
|
Variable(2)
|
$
|
2,711,824.63
|
September
25, 2036
|
I-23-B
|
Variable(2)
|
$
|
2,711,824.63
|
September
25, 2036
|
I-24-A
|
Variable(2)
|
$
|
2,615,787.04
|
September
25, 2036
|
I-24-B
|
Variable(2)
|
$
|
2,615,787.04
|
September
25, 2036
|
I-25-A
|
Variable(2)
|
$
|
2,523,146.19
|
September
25, 2036
|
I-25-B
|
Variable(2)
|
$
|
2,523,146.19
|
September
25, 2036
|
I-26-A
|
Variable(2)
|
$
|
2,433,782.04
|
September
25, 2036
|
I-26-B
|
Variable(2)
|
$
|
2,433,782.04
|
September
25, 2036
|
I-27-A
|
Variable(2)
|
$
|
2,347,578.80
|
September
25, 2036
|
I-27-B
|
Variable(2)
|
$
|
2,347,578.80
|
September
25, 2036
|
I-28-A
|
Variable(2)
|
$
|
2,264,424.78
|
September
25, 2036
|
I-28-B
|
Variable(2)
|
$
|
2,264,424.78
|
September
25, 2036
|
I-29-A
|
Variable(2)
|
$
|
2,184,212.20
|
September
25, 2036
|
I-29-B
|
Variable(2)
|
$
|
2,184,212.20
|
September
25, 2036
|
I-30-A
|
Variable(2)
|
$
|
2,106,837.13
|
September
25, 2036
|
I-30-B
|
Variable(2)
|
$
|
2,106,837.13
|
September
25, 2036
|
I-31-A
|
Variable(2)
|
$
|
2,032,199.28
|
September
25, 2036
|
I-31-B
|
Variable(2)
|
$
|
2,032,199.28
|
September
25, 2036
|
I-32-A
|
Variable(2)
|
$
|
1,960,201.91
|
September
25, 2036
|
I-32-B
|
Variable(2)
|
$
|
1,960,201.91
|
September
25, 2036
|
I-33-A
|
Variable(2)
|
$
|
1,890,751.71
|
September
25, 2036
|
I-33-B
|
Variable(2)
|
$
|
1,890,751.71
|
September
25, 2036
|
I-34-A
|
Variable(2)
|
$
|
1,823,758.63
|
September
25, 2036
|
I-34-B
|
Variable(2)
|
$
|
1,823,758.63
|
September
25, 2036
|
I-35-A
|
Variable(2)
|
$
|
1,759,135.84
|
September
25, 2036
|
I-35-B
|
Variable(2)
|
$
|
1,759,135.84
|
September
25, 2036
|
I-36-A
|
Variable(2)
|
$
|
1,696,799.57
|
September
25, 2036
|
I-36-B
|
Variable(2)
|
$
|
1,696,799.57
|
September
25, 2036
|
I-37-A
|
Variable(2)
|
$
|
1,636,668.97
|
September
25, 2036
|
I-37-B
|
Variable(2)
|
$
|
1,636,668.97
|
September
25, 2036
|
I-38-A
|
Variable(2)
|
$
|
1,578,666.11
|
September
25, 2036
|
I-38-B
|
Variable(2)
|
$
|
1,578,666.11
|
September
25, 2036
|
I-39-A
|
Variable(2)
|
$
|
1,522,715.75
|
September
25, 2036
|
I-39-B
|
Variable(2)
|
$
|
1,522,715.75
|
September
25, 2036
|
I-40-A
|
Variable(2)
|
$
|
1,468,745.35
|
September
25, 2036
|
I-40-B
|
Variable(2)
|
$
|
1,468,745.35
|
September
25, 2036
|
I-41-A
|
Variable(2)
|
$
|
1,416,684.91
|
September
25, 2036
|
I-41-B
|
Variable(2)
|
$
|
1,416,684.91
|
September
25, 2036
|
I-42-A
|
Variable(2)
|
$
|
1,366,466.92
|
September
25, 2036
|
I-42-B
|
Variable(2)
|
$
|
1,366,466.92
|
September
25, 2036
|
I-43-A
|
Variable(2)
|
$
|
1,318,026.24
|
September
25, 2036
|
I-43-B
|
Variable(2)
|
$
|
1,318,026.24
|
September
25, 2036
|
I-44-A
|
Variable(2)
|
$
|
1,271,300.04
|
September
25, 2036
|
I-44-B
|
Variable(2)
|
$
|
1,271,300.04
|
September
25, 2036
|
I-45-A
|
Variable(2)
|
$
|
34,503,166.19
|
September
25, 2036
|
I-45-B
|
Variable(2)
|
$
|
34,503,166.19
|
September
25, 2036
|
______________________________________
(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in the month following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC I Regular Interest.
(2)
Calculated
in accordance with the definition of “Uncertificated REMIC I Pass-Through Rate”
herein.
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II”.
The Class R-2 Certificates will represent the sole class of Residual Interests
in REMIC II for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Uncertificated REMIC II Pass-Through
Rate, the initial Uncertificated Principal Balance and, for purposes of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC II Regular Interests (as defined herein).
None of the REMIC II Regular Interests will be certificated.
Designation
|
Uncertificated
REMIC II
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible
Maturity
Date (1)
|
|
AA
|
Variable(2)
|
$
|
331,463,796.78
|
September
25, 2036
|
A
|
Variable(2)
|
$
|
2,543,470.00
|
September
25, 2036
|
M-1
|
Variable(2)
|
$
|
199,550.00
|
September
25, 2036
|
M-2
|
Variable(2)
|
$
|
111,620.00
|
September
25, 2036
|
M-3
|
Variable(2)
|
$
|
91,320.00
|
September
25, 2036
|
M-4
|
Variable(2)
|
$
|
87,940.00
|
September
25, 2036
|
M-5
|
Variable(2)
|
$
|
43,970.00
|
September
25, 2036
|
M-6
|
Variable(2)
|
$
|
47,350.00
|
September
25, 2036
|
B-1
|
Variable(2)
|
$
|
43,970.00
|
September
25, 2036
|
B-2
|
Variable(2)
|
$
|
33,820.00
|
September
25, 2036
|
B-3
|
Variable(2)
|
$
|
32,140.00
|
September
25, 2036
|
B-4
|
Variable(2)
|
$
|
33,820.00
|
September
25, 2036
|
ZZ
|
Variable(2)
|
$
|
3,495,597.28
|
September
25, 2036
|
IO
|
(2)
|
(3)
|
___________________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC II Regular
Interest.
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC II Pass-Through
Rate” herein.
|
(3)
|
REMIC
II Regular Interest IO will not have an Uncertificated Principal
Balance
but will accrue interest on its uncertificated notional amount calculated
in accordance with the definition of “Uncertificated Notional Amount”
herein.
|
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III”.
The Class R-3 Certificates will represent the sole class of Residual Interests
in REMIC III for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, Pass-Through Rate,
Initial Certificate Principal Balance (or initial Uncertificated Principal
Balance, in the case of the Class C Interest and the Class IO Interest) and,
for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each class of Certificates and interests
that represents ownership of one or more of the Regular Interests in REMIC
III
created hereunder.
Each
Certificate, other than the Class C Certificates and Class R Certificates,
represents ownership of a Regular Interest in REMIC III and also represents
(i)
the right to receive certain amounts specified herein in respect of Basis Risk
Shortfall Carry Forward Amounts (as defined herein) and (ii) the obligation
to
pay Class IO Distribution Amounts (as defined herein). The entitlement to
principal of the Regular Interest which corresponds to each Certificate shall
be
equal in amount and timing to the entitlement to principal of such Certificate.
Designation
|
Pass-Through
Rate
|
Initial
Certificate or UncertificatedPrincipal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
A(2)
|
Variable(3)
|
$
|
254,347,000.00
|
September
25, 2036
|
M-1(2)
|
Variable(3)
|
$
|
19,955,000.00
|
September
25, 2036
|
M-2(2)
|
Variable(3)
|
$
|
11,162,000.00
|
September
25, 2036
|
M-3(2)
|
Variable(3)
|
$
|
9,132,000.00
|
September
25, 2036
|
M-4(2)
|
Variable(3)
|
$
|
8,794,000.00
|
September
25, 2036
|
M-5(2)
|
Variable(3)
|
$
|
4,397,000.00
|
September
25, 2036
|
M-6(2)
|
Variable(3)
|
$
|
4,735,000.00
|
September
25, 2036
|
B-1(2)
|
Variable(3)
|
$
|
4,397,000.00
|
September
25, 2036
|
B-2(2)
|
Variable(3)
|
$
|
3,382,000.00
|
September
25, 2036
|
B-3(2)
|
Variable(3)
|
$
|
3,214,000.00
|
September
25, 2036
|
B-4(2)
|
Variable(3)
|
$
|
3,382,000.00
|
September
25, 2036
|
Class
C Interest
|
Variable(3)(4)
|
$
|
11,331,364.06
|
September
25, 2036
|
Class
IO Interest
|
(5)
|
(6)
|
September
25, 2036
|
___________________
(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in the month following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each Regular Interest in REMIC III the ownership of which is
represented by the Class A, Class M and Class B Certificates, the Class C
Interest and the Class IO Interest.
(2)
This
Class of Certificates represents ownership of a Regular Interest in REMIC III.
Any amount distributed on this Class of Certificates on any Distribution Date
in
excess of the amount distributable on the related Regular Interest in REMIC
III
on such Distribution Date shall be treated for federal income tax purposes
as
having been paid from the Reserve Fund or the Supplemental Interest Trust,
as
applicable, and any amount distributable on the related Regular Interest in
REMIC III on such Distribution Date in excess of the amount distributable on
such Class of Certificates on such Distribution Date shall be treated for such
purposes as having been distributed to the Holders of such Certificates and
then
paid by such Holders to the Supplemental Interest Trust, all pursuant to and
as
further provided in Section 3.21 hereof.
(3)
Calculated
in accordance with the definition of “Pass-Through Rate” herein. Each Regular
Interest in REMIC III which corresponds to a Class A, Class M or Class B
Certificate will have the same Pass-Through Rate as such Certificate, except
with respect to the Net WAC Cap Rate. The Net WAC Cap Rate for each such Regular
Interest in REMIC III and Certificate is specified in the definition of “Net WAC
Cap Rate.”
(4)
The
Class
C Interest will not accrue interest on its Uncertificated Principal Balance,
but
will accrue interest on its Uncertificated Notional Amount as described
herein.
(5)
For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC II
Regular Interest IO.
(6)
For
federal income tax purposes, the Class IO Interest will not have an
Uncertificated Principal Balance, but will have a notional amount equal to
the
Uncertificated Notional Amount of REMIC II Regular Interest IO.
REMIC
IV
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Class C Interest as a REMIC for federal income tax purposes,
and such segregated pool of assets will be designated as “REMIC IV”. The Class
R-4 Interest represents the sole class of Residual Interests in REMIC IV for
purposes of the REMIC Provisions.
The
following table sets forth the Class designation, Pass-Through Rate, Initial
Certificate Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated Class of Certificates that represents a Regular Interest in REMIC
IV created hereunder. Each Class C Certificate represents ownership of a Regular
Interest in REMIC IV and also represents (i) the obligation to pay certain
amounts specified herein in respect of Basis Risk Shortfall Carry Forward
Amounts and (ii) the right to receive Class IO Distribution
Amounts.
Class
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
C
|
Variable(2)
|
$
11,331,364.06
|
September
25, 2036
|
_______________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for the Class C
Certificates.
|
(2)
|
The
Class C Certificates will not accrue interest on its Uncertificated
Principal Balance, but will receive 100% of the amounts received
in
respect of the Class C Interest.
|
REMIC
V
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Class IO Interest as a REMIC for federal income tax purposes,
and such segregated pool of assets will be designated as “REMIC V”. The Class
R-5 Interest represents the sole class of Residual Interests in REMIC V for
purposes of the REMIC Provisions.
The
following table sets forth the designation, Pass-Through Rate, initial
Uncertificated Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated class of interests that represents a Regular Interest in REMIC
V
created hereunder:
Designation
|
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
IO(2)
|
(3)
|
(4)
|
September
25, 2036
|
_______________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for REMIC V Regular Interest
IO.
|
(2)
|
REMIC
V Regular Interest IO will be held as an asset of the Supplemental
Interest Trust.
|
(3)
|
REMIC
V Regular Interest IO will not have a Pass-Through Rate, but will
receive
100% of the amounts received in respect of the Class IO
Interest.
|
(4)
|
REMIC
V Regular Interest IO will not have an Uncertificated Principal Balance,
but will have a notional amount equal to the Uncertificated Notional
Amount of the Class IO Interest.
|
The
Trust
Fund shall be named, and may be referred to as, the “Bear Xxxxxxx Mortgage
Funding Trust 2006-SL2.” The Certificates issued hereunder may be referred to as
“Mortgage-Backed Certificates, Series 2006-SL2” (including for purposes of any
endorsement or assignment of a Mortgage Note or Mortgage).
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Seller and the Trustee agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless otherwise
expressly provided or unless the context otherwise requires, shall have the
meanings specified in this Article.
10-K
Filing Deadline:
The
meaning set forth in Section 3.16(iii).
Accepted
Servicing Practices:
With
respect to each Mortgage Loan, those mortgage servicing practices and
procedures, including prudent collection and loan administration procedures,
and
the standard of care (i) employed by prudent mortgage servicers which service
mortgage loans of the same type as the Mortgage Loans in the jurisdictions
in
which the related Mortgage Properties are located or (ii) in accordance with
the
Xxxxxx Mae Guide or Xxxxxxx Mac Guide, subject to any variances negotiated
with
Xxxxxx Mae or Xxxxxxx Mac and subject to the express provisions of this
Agreement. Such standard of care shall not be lower than that the Master
Servicer customarily employs and exercises in servicing and administering
similar mortgage loans for its own account and shall be in full compliance
with
all federal, state, and local laws, ordinances, rules and
regulations.
Account:
The
Distribution Account, the Reserve Fund, the Swap Account and the Protected
Account.
Accrual
Period:
With
respect to the Certificates (other than the Class C Certificates and the
Residual Certificates) and any Distribution Date, the period from and including
the immediately preceding Distribution Date (or with respect to the first
Accrual Period, the Closing Date) to and including the day prior to such
Distribution Date. With respect to the Class C Certificates and the Class C
Interest and any Distribution Date, the calendar month immediately preceding
such Distribution Date. All calculations of interest on the Certificates (other
than the Class C Certificates and the Residual Certificates) will be made on
the
basis of the actual number of days elapsed in the related Accrual Period. All
calculations of interest on the Class C Certificates and the Class C Interest
will be made on the basis of a 360-day year consisting of twelve 30-day
months.
Additional
Disclosure:
As
defined in Section 3.16(a)(v).
Additional
Disclosure Notification:
The
form of notice set forth in Exhibit Q.
Additional
Form 10-D Disclosure:
As
defined in Section 3.16(a)(ii).
Additional
Form 10-K Disclosure:
As
defined in Section 3.16(a)(iv).
Adjustable
Rate Mortgage Loan:
Each of
the Mortgage Loans identified in the Mortgage Loan Schedule as having a Mortgage
Rate that is subject to adjustment.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the first day of the month in
which the Mortgage Rate of an Adjustable Rate Mortgage Loan changes pursuant
to
the related Mortgage Note. The first Adjustment Date following the Cut-off
Date
as to each Adjustable Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
Advance:
An
advance of delinquent payments of principal and interest in respect of a
Mortgage Loan required to be made by the Master Servicer as provided in Section
5.01 hereof.
Affected
Party:
As
defined in the Swap Agreement.
Agreement:
This
Pooling and Servicing Agreement and any and all amendments or supplements hereto
made in accordance with the terms herein.
Amount
Held for Future Distribution:
As to
any Distribution Date, the aggregate amount held in the Protected Account at
the
close of business on the immediately preceding Determination Date on account
of
(i) all Scheduled Payments or portions thereof received in respect of the
Mortgage Loans due after the related Due Period and (ii) Principal Prepayments,
Liquidation Proceeds, Subsequent Recoveries and Insurance Proceeds received
in
respect of such Mortgage Loans after the last day of the related Prepayment
Period.
Annual
Statement of Compliance:
As
defined in Section 3.16.
Applied
Realized Loss Amount:
With
respect to any Distribution Date and any Class of Class A, Class M and Class
B
Certificates, the sum of the Realized Losses with respect to the Mortgage Loans
that have been applied in reduction of the Certificate Principal Balance of
a
Class of Certificates pursuant to Section 5.05 of this Agreement which have
not
previously been reimbursed or reduced by any Subsequent Recoveries applied
to
such Applied Realized Loss Amount.
Appraised
Value:
With
respect to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing or, with respect to any other Mortgage Loan, the lesser
of (x) the appraised value of the Mortgaged Property based upon the appraisal
made by a fee appraiser at the time of the origination of the related Mortgage
Loan, and (y) the sales price of the Mortgaged Property at the time of such
origination.
Assessment
of Compliance:
As
defined in Section 3.14.
Attestation
Report:
As
defined in Section 3.14.
Back-Up
Certification:
As
defined in Section 3.16(a)(iv).
Basis
Risk Shortfall Carry Forward Amount:
With
respect to any Distribution Date and any Class of Class A, Class M and Class
B
Certificates, an amount equal to the sum of (A) the excess, if any, of (a)
the
amount of Current Interest that such Class would have been entitled to receive
on such Distribution Date had the Pass-Though Rate applicable to such Class
been
calculated at a per annum rate equal to the lesser of (x) the related One-Month
LIBOR Pass-Through Rate and (y) 11.00% per annum, over (b) the amount of Current
Interest that such Class received on such Distribution Date if the Pass-Through
Rate is limited to the Net Rate Cap and (B) the Basis Risk Shortfall Carry
Forward Amount for the previous Distribution Date not previously paid, together
with interest thereon at a rate equal to the related Pass-Through Rate the
current Distribution Date.
Bankruptcy
Code:
Title
11 of the United States Code.
Book-Entry
Certificates:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.06).
As of the Closing Date, each Class of Regular Certificates (other than the
Class
C Certificates) constitutes a Class of Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the City of New York, New York, Chicago, Illinois, Minneapolis,
Minnesota or any city in which the Corporate Trust Office of the Trustee or
the
principal office of the Master Servicer are located and are authorized or
obligated by law or executive order to be closed.
Certificate:
Any one
of the certificates of any Class executed and authenticated by the Trustee
in
substantially the forms attached hereto as Exhibits A-1 through
A-5.
Certificate
Margin:
With
respect to the Class A Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest A, 0.160% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.320% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-1 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-1, 0.350% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.525% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-2 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-2, 0.380% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.570% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-3 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-3, 0.410% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.615% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-4 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-4, 0.520% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.780% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-5 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-5, 0.600% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.900% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-6 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-6, 0.700% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 1.050% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class B-1 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest B-1, 1.100% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 1.650% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class B-2 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest B-2, 1.250% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 1.875% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class B-3 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest B-3, 2.750% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 4.125% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class B-4 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest B-4 Certificates,
3.500% per annum in the case of each Distribution Date through and including
the
first possible Optional Termination Date and 5.250% per annum in the case of
each Distribution Date thereafter.
Certificate
Notional Amount:
With
respect to the Class C Certificates and any Distribution Date, an amount equal
to the Stated Principal Balance of the Mortgage Loans as of the beginning of
the
related Due Period. The
initial Certificate Notional Amount of the Class C Certificates shall be
$338,228,364.06. For federal income tax purposes, the Certificate Notional
Amount for any Distribution Date shall be an amount equal to the Uncertificated
Notional Amount for the Class C Interest for such Distribution
Date.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person that is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Principal Balance:
As to
any Certificate (other than any Class C Certificate and any Class R Certificate)
and as of any Distribution Date, the Initial Certificate Principal Balance
of
such Certificate plus, in the case of a Class A, Class M or Class B Certificate,
any Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 5.04(b), less the sum of (i) all amounts
distributed with respect to such Certificate in reduction of the Certificate
Principal Balance thereof on previous Distribution Dates pursuant to Section
5.04, and (ii) any Applied Realized Loss Amounts allocated to such Certificate
on previous Distribution Dates. As to the Class C Certificates and as of any
Distribution Date, an amount equal to the Uncertificated Principal Balance
of
the Class C Interest.
Certificate
Register:
The
register maintained pursuant to Section 6.02 hereof.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the case of any
Book-Entry Certificates).
Certification
Parties:
The
meaning set forth in Section 3.16(a)(iv).
Certifying
Person:
The
meaning set forth in Section 3.16(a)(iv).
Class:
All
Certificates bearing the same Class designation as set forth in Section 6.01
hereof.
Class
A Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the Principal
Distribution Amount for such Distribution Date and (y) the excess, if any,
of
(i) the aggregate Certificate Principal Balance of the Class A Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (a) the
product of (1) 50.40% and (2) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Due Period), and (b) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the related Due Period) minus the
Overcollateralization Floor.
Class
A Certificate:
Any
Certificate designated as a “Class A Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the Percentage Interest
of
distributions provided for the Class A Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B Certificates:
Any of
the Class B-1, Class B-2, Class B-3 or Class B-4 Certificates.
Class
B-1 Certificate:
Any
Certificate designated as a “Class B-1 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-1 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-1 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount and the Class M-6 Principal Distribution Amount and (y)
the
excess, if any, of (a) the sum of (1) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (2)
the
Certificate Principal Balance of the Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (3) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (4) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (6) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (7) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (8) the Certificate Principal
Balance of the Class B-1 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 87.40% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
B-2 Certificate:
Any
Certificate designated as a “Class B-2 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-2 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-2 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount and the Class
B-1 Principal Distribution Amount and (y) the excess, if any, of (a) the sum
of
(1) the aggregate Certificate Principal Balance of the Class A Certificates
(after taking into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (6) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (7) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (8) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (9) the Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 89.40% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Due Period), and (2) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the related Due Period) minus the
Overcollateralization Floor.
Class
B-3 Certificate:
Any
Certificate designated as a “Class B-3 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-3 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-3 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount, the Class
B-1
Principal Distribution Amount, and the Class B-2 Principal Distribution Amount
and (y) the excess, if any, of (a) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (2) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (3) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (4) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (5) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (6) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (7) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (8) the Certificate Principal Balance of the Class B-1 Certificates
(after taking into account the distribution of the Class B-1 Principal
Distribution Amount on such Distribution Date), (9) the Certificate Principal
Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount on such Distribution
Date) and (10) the Certificate Principal Balance of the Class B-3 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 91.30% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Due Period), and (2) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the related Due Period) minus the
Overcollateralization Floor.
Class
B-4 Certificate:
Any
Certificate designated as a “Class B-4 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-4 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-4 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount, the Class
B-1
Principal Distribution Amount, the Class B-2 Principal Distribution Amount
and
the Class B-3 Principal Distribution Amount and (y) the excess, if any, of
(a)
the sum of (1) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (6) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (7) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (8) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (9) the Certificate Principal Balance of the Class B-2 Certificates
(after taking into account the distribution of the Class B-2 Principal
Distribution Amount on such Distribution Date), (10) the Certificate Principal
Balance of the Class B-3 Certificates (after taking into account the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date) and (11) the Certificate Principal Balance of the Class B-4 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 93.30% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the related Due Period), and (2) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the related Due Period) minus the
Overcollateralization Floor.
Class
C Certificate:
Any
Certificate designated as a “Class C Certificate” on the face thereof, in the
form of Exhibit A-4 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class C Certificates herein and evidencing (i)
a
Regular Interest in REMIC IV, (ii) the obligation to pay Basis Risk Shortfall
Carry Forward Amounts, (iii) the right to receive Class IO Distribution Amounts
and (iv) the right to receive any Prepayment Charge Waiver Amounts.
Class
C Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Current Interest for the
Class C Interest for such Distribution Date, (ii) any Overcollateralization
Release Amount for such Distribution Date and (iii) without duplication, any
Subsequent Recoveries not distributed to the Class A, Class M and Class B
Certificates on such Distribution Date; provided, however, that, on any
Distribution Date after the Distribution Date on which the Certificate Principal
Balances of the Class A, Class M and Class B Certificates have been reduced
to
zero, the Class C Distribution Amount shall include the Overcollateralization
Amount.
Class
C Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class C Certificates, evidencing a Regular Interest in REMIC
III
for purposes of the REMIC Provisions.
Class
IO Distribution Amount:
As
defined in Section 3.21 hereof. For purposes of clarity, the Class IO
Distribution Amount for any Distribution Date shall equal the amount payable
to
the Swap Administrator on such Distribution Date in excess of the amount payable
on REMIC V Regular Interest IO on such Distribution Date, all as further
provided in Section 3.21 hereof.
Class
IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
holders of REMIC V Regular Interest IO, evidencing a Regular Interest in REMIC
V
for purposes of the REMIC provisions.
Class
M Certificates:
Any of
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Certificates.
Class
M-1 Certificate:
Any
Certificate designated as a “Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-1 Certificates as set forth herein and
evidencing
(i) a Regular Interest in REMIC III, (ii) the right to receive Basis Risk
Shortfall Carry Forward Amounts and (iii) the obligation to pay Class IO
Distribution Amounts.
Class
M-1 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount and (y) the excess, if any, of (a) the sum of
(1)
the aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date) and (2) the Certificate Principal Balance
of
the Class M-1 Certificates immediately prior to such Distribution Date, over
(b)
the lesser of (1) the product of (x) 62.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
M-2 Certificate:
Any
Certificate designated as a “Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-2 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-2 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount and the Class M-1 Principal Distribution Amount
and (y) the excess, if any, of (a) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (2) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date) and (3) the Certificate Principal
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 68.80% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
M-3 Certificate:
Any
Certificate designated as a “Class M-3 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-3 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-3 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount
and
the Class M-2 Principal Distribution Amount and (y) the excess, if any, of
(a)
the sum of (1) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (4) the Certificate Principal
Balance of the Class M-3 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 74.20% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
M-4 Certificate:
Any
Certificate designated as a “Class M-4 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-4 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-4 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount and the Class M-3 Principal Distribution
Amount and (y) the excess, if any, of (a) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (2) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (3) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (4) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (5) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 79.40% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
M-5 Certificate:
Any
Certificate designated as a “Class M-5 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-5 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-5 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount and the Class M-4 Principal Distribution Amount and (y) the excess,
if
any, of (a) the sum of (1) the aggregate Certificate Principal Balance of the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (6) the Certificate Principal
Balance of the Class M-5 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 82.00% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
M-6 Certificate:
Any
Certificate designated as a “Class M-6 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-6 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-6 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount and the Class M-5 Principal
Distribution Amount and (y) the excess, if any, of (a) the sum of (1) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date), (2) the Certificate Principal Balance of
the
Class M-1 Certificates (after taking into account the distribution of the Class
M-1 Principal Distribution Amount on such Distribution Date), (3) the
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the distribution of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (4) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (5) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (6) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (7) the Certificate Principal
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 84.80% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Due Period),
and
(2) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) minus the Overcollateralization Floor.
Class
R Certificate:
Any of
the Class R-1, Class R-2, Class R-3 or Class RX Certificates.
Class
R-1 Certificate:
Any
Certificate designated a “Class R-1 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
I and representing the right to the Percentage Interest of distributions
provided for the Class R-1 Certificates as set forth herein.
Class
R-2 Certificate:
Any
Certificate designated a “Class R-2 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
II and representing the right to the Percentage Interest of distributions
provided for the Class R-2 Certificates as set forth herein.
Class
R-3 Certificate:
Any
Certificate designated a “Class R-3 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
III and representing the right to the Percentage Interest of distributions
provided for the Class R-3 Certificates as set forth herein.
Class
RX Certificate:
Any
Certificate designated a “Class RX Certificate” on the face thereof, in the form
set forth in Exhibit A-5 hereto, evidencing the ownership of the Class R-4
Interest and Class R-5 Interest and representing the right to the Percentage
Interest of distributions provided for the Class RX Certificates as set forth
herein.
Class
R-4 Interest:
The
uncertificated Residual Interest in REMIC IV.
Class
R-5 Interest:
The
uncertificated Residual Interest in REMIC V.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Combined
Loan-to-Value Ratio:
With
respect to any Mortgage Loan and as of any date of determination, a fraction
(expressed as a percentage) the numerator of which is the sum of (i) original
principal balance of the related Mortgage Loan at such date of determination
and
(ii) the unpaid principal balance of the related first lien Mortgage Loan as
of
the date of origination of that Mortgage Loan and the denominator of which
is
the applicable Appraised Value of the related Mortgaged Property at
origination.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest:
An
amount, not to exceed the Servicing Fee, to be deposited in the Protected
Account by the Master Servicer to the payment of a Prepayment Interest Shortfall
on a Mortgage Loan subject to this Agreement.
Corporate
Trust Office:
The
designated office of the Trustee where at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of execution of this Agreement is located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000 Attention: Global
Securities and Trust Services Group - Bear Xxxxxxx Mortgage Funding Trust
2006-SL2, or at such other address as the Trustee may designate from time to
time.
Corresponding
Certificate:
With
respect to each REMIC II Regular Interest (other than REMIC II Regular Interests
AA, ZZ and IO), the Certificate with the corresponding designation. With respect
to each REMIC III Regular Interest (other than the Class C Interest and the
Class IO Interest), the related Certificate representing an ownership
therein.
Cumulative
Realized Loss Percentage:
With
respect to the Certificates and any Distribution Date, the percentage obtained
by dividing (x) the aggregate Realized Losses on the Mortgage Loans incurred
since the related Cut-off Date through the end of the related Due Period by
(y)
the aggregate Stated Principal Balance of the Mortgage Loans as of the related
Cut-off Date.
Current
Interest:
As of
any Distribution Date, with respect to the Certificates and interests of each
class (other than the Residual Interests and the Residual Certificates), (i)
the
interest accrued on the Certificate Principal Balance, or Certificate Notional
Amount or Uncertificated Notional Amount, as applicable, during the related
Accrual Period at the applicable Pass-Through Rate, plus any amount previously
distributed with respect to interest for such Certificate or interest that
has
been recovered as a voidable preference by a trustee in bankruptcy minus (ii)
the sum of (a) any Prepayment Interest Shortfall for such Distribution Date,
to
the extent not covered by Compensating Interest and (b) any Relief Act Interest
Shortfalls during the related Due Period, provided, however, that for purposes
of calculating Current Interest for any such class, amounts specified in clause
(ii) hereof for any such Distribution Date shall be allocated first to the
Class
C Certificates and the Class C Interest and the Residual Certificates in
reduction of amounts otherwise distributable to such Certificates and interest
on such Distribution Date and then any excess shall be allocated to each Class
of Class A, Class M and Class B Certificates pro
rata
based on
the respective amounts of interest accrued pursuant to clause (i) hereof for
each such Class on such Distribution Date.
Current
Specified Enhancement Percentage: With
respect to any Distribution Date, the percentage obtained by dividing (x) the
sum of (i) the aggregate Certificate Principal Balance of the Class M
Certificates and Class B Certificates and (ii) the Overcollateralization Amount,
in each case prior to the distribution of the Principal Distribution Amount
on
such Distribution Date, by (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of the related Due Period (after giving effect
to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Realized Losses incurred
during the related Due Period).
Custodial
Agreements:
The
LaSalle Custodial Agreement or Xxxxx Fargo Custodial Agreement, as applicable.
Custodians:
(i)
Xxxxx Fargo, or any successor custodian appointed pursuant to the provisions
hereof and the Xxxxx Fargo Custodial Agreement and (ii) LaSalle, or any
successor custodian appointed pursuant to the provisions hereof and the LaSalle
Custodial Agreement.
Cut-off
Date:
The
close of business on August 1, 2006.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the unpaid principal balance thereof as of the close of
business on the Cut-off Date after application of all Principal Prepayments
received prior to the Cut-off Date and scheduled payments of principal due
on or
before the Cut-off Date, whether or not received, but without giving effect
to
any installments of principal received in respect of Due Dates after the Cut-off
Date. The aggregate Cut-off Date Principal Balance of the Mortgage Loans is
$338,228,364.06.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any other reduction that results in
a
permanent forgiveness of principal.
Defaulting
Party:
As
defined in the Swap Agreement.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that results
in a
permanent forgiveness of principal, which valuation or reduction results from
an
order of such court that is final and non-appealable in a proceeding under
the
Bankruptcy Code.
Definitive
Certificates:
As
defined in Section 6.06.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month), then
on
the last day of such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Principal Balance or Initial Notional Amount of this
Certificate”.
Depositor:
Bear
Xxxxxxx Asset Backed Securities I LLC, a Delaware limited liability company,
or
its successor in interest.
Depositor
Information:
As
defined in Section 3.16.
Depository:
The
initial Depository shall be The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a “clearing
agency” pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be 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
Agreement:
With
respect to the Class of Book-Entry Certificates, the agreement among the
Depositor signing on behalf of the Issuing Entity and the initial Depository,
dated as of the Closing Date, substantially in the form of Exhibit
H.
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.
Designated
Depository Institution:
A
depository institution (commercial bank, federal savings bank, mutual savings
bank or savings and loan association) or trust company (which may include the
Trustee and the Master Servicer), the deposits of which are fully insured by
the
FDIC to the extent provided by law.
Determination
Date:
With
respect to any Distribution Date, the 15th day of the month of such Distribution
Date or, if such 15th day is not a Business Day, the immediately preceding
Business Day.
Distribution
Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 4.04 in the name of the Trustee for the benefit of the
Certificateholders designated “LaSalle Bank National Association, in trust for
registered holders of Bear Xxxxxxx Asset Backed Securities I LLC, Bear Xxxxxxx
Mortgage Funding Trust 2006-SL2, Mortgage-Backed Certificates, Series 2006-SL2”.
The Distribution Account must be an Eligible Account.
Distribution
Account Deposit Date:
Two
Business Days prior to each Distribution Date.
Distribution
Date:
The
25th day of each calendar month after the initial issuance of the Certificates,
or if such 25th day is not a Business Day, the next succeeding Business Day,
commencing in September 2006.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period from and including the second
day
of the calendar month preceding the calendar month in which such Distribution
Date occurs through close of business on the first day of the calendar month
in
which such Distribution Date occurs.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which (or, in the
case
of a depository institution or trust company that is the principal subsidiary
of
a holding company, the debt obligations of such holding company, so long as
Xxxxx’x is not a Rating Agency) are rated by each Rating Agency in one of its
two highest long-term and its highest short-term rating categories,
respectively, at the time any amounts are held on deposit therein, or (ii)
an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and
the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that
is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii)
a
trust account or accounts maintained with the corporate trust department of
a
federal or state chartered depository institution or trust company having
capital and surplus of not less than $50,000,000, acting in its fiduciary
capacity or (iv) any other account acceptable to each Rating Agency, as
evidenced in writing. Eligible Accounts may bear interest, and may include,
if
otherwise qualified under this definition, accounts maintained with the
Trustee.
EMC:
EMC
Mortgage Corporation, a Delaware corporation, and its successors and
assigns.
EMC
Flow Loans:
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificates:
Any of
the Class C Certificates and Residual Certificates.
Estimated
Swap Termination Payment:
As
specified in the Swap Agreement.
Event
of Default:
As
defined in Section 8.01 hereof.
Excess
Cashflow:
With
respect to any Distribution Date, an amount, if any, equal to the sum of (a)
the
Remaining Excess Spread for such Distribution Date and (b) the
Overcollateralization Release Amount for such Distribution Date.
Excess
Liquidation Proceeds:
To the
extent not required by law to be paid to the related Mortgagor, the excess,
if
any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated
Principal Balance of such Mortgage Loan and accrued and unpaid interest at
the
related Mortgage Rate through the last day of the month in which the Mortgage
Loan has been liquidated.
Excess
Spread:
With
respect to any Distribution Date, the excess, if any, of (i) the Interest Funds
for such Distribution Date over (ii) the sum of the Current Interest on the
Class A, Class M and Class B Certificates and Interest Carry Forward Amounts
on
the Class A Certificates (other than Interest Carry Forward Amounts paid
pursuant to Sections 5.04(a)(3)(A), in each case for such Distribution
Date.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Exemption:
Prohibited Transaction Exemption 90-30, as amended from time to
time.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (i) the excess, if any, of
the
Overcollateralization Target Amount for such Distribution Date over the
Overcollateralization Amount for such Distribution Date (after giving effect
to
distributions of principal on the Certificates other than any Extra Principal
Distribution Amount) and (ii) the Excess Spread for such Distribution
Date.
Xxxxxx
Xxx:
Xxxxxx
Xxx (formerly, Federal National Mortgage Association), or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Certification:
The
certification by a Custodian substantially in the form of Exhibit Three to
the
related Custodial Agreement.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by EMC pursuant to or as contemplated
by
Section 2.03(c) or Section 10.01), a determination made by the Master Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Master Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered.
The
Trustee shall maintain records, based solely on information provided by the
Master Servicer, of each Final Recovery Determination made thereby.
Fiscal
Quarter:
December 1 to February 29 (or the last day in such month), March 1 to May 31,
June 1 to August 31, or September 1 to November 30, as applicable.
Form
8-K Disclosure Information:
The
meaning set forth in Section 3.16(a)(iii).
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, or any successor thereto.
Global
Certificate:
Any
Private Certificate registered in the name of the Depository or its nominee,
beneficial interests in which are reflected on the books of the Depository
or on
the books of a Person maintaining an account with such Depository (directly
or
as an indirect participant in accordance with the rules of such
depository).
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage set forth
in
the related Mortgage Note that is added to the Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
Indemnified
Persons:
The
Trustee, the Master Servicer, the Trust Fund and their officers, directors,
agents and employees and, with respect to the Trustee, any separate co-trustee
and its officers, directors, agents and employees.
Index:
With
respect to each Adjustable Rate Mortgage Loan and with respect to each related
Adjustment Date, the index as specified in the related Mortgage
Note.
Individual
Certificate:
Any
Private Certificate registered in the name of the Holder other than the
Depository or its nominee.
Initial
Certification:
The
certification by a Custodian substantially in the form of Exhibit One to the
related Custodial Agreement.
Initial
Certificate Principal Balance:
With
respect to any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date.
Institutional
Accredited Investor:
Any
Person meeting the requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation
D under the Securities Act or any entity all of the equity holders in which
come
within such paragraphs.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy
and any other insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the Master Servicer
or
the trustee under the deed of trust and are not applied to the restoration
of
the related Mortgaged Property or released to the Mortgagor in accordance with
the procedures that the Master Servicer would follow in servicing mortgage
loans
held for its own account, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured
Expenses:
Expenses covered by any insurance policy with respect to the Mortgage
Loans.
Interest
Carry Forward Amount:
As of
any Distribution Date and with respect to each Class of Certificates (other
than
the Class C Certificates and the Residual Certificates), the sum of (i) the
excess of (a) the Current Interest for such Class with respect to such
Distribution Date and any prior Distribution Dates over (b) the amount actually
distributed to such Class of Certificates with respect to interest on such
Distribution Dates and (ii) interest thereon (to the extent permitted by
applicable law) at the applicable Pass-Through Rate for such Class for the
related Accrual Period including the Accrual Period relating to such
Distribution Date.
Interest
Determination Date:
Shall
mean the second LIBOR Business Day preceding the commencement of each Accrual
Period.
Interest
Funds:
With
respect to any Distribution Date (1) the sum, without duplication, of (a) all
scheduled interest during the related Due Period with respect to the Mortgage
Loans less the Servicing Fee, the Trustee Fee and the LPMI Fee, if any, (b)
all
Advances relating to interest with respect to the Mortgage Loans made on or
prior to the related Distribution Account Deposit Date, (c) all Compensating
Interest with respect to the Mortgage Loans and required to be remitted by
the
Master Servicer pursuant to this Agreement with respect to such Distribution
Date, (d) Liquidation Proceeds and Subsequent Recoveries with respect to the
Mortgage Loans collected during the related Prepayment Period (to the extent
such Liquidation Proceeds and Subsequent Recoveries relate to interest), (e)
all
amounts relating to interest with respect to each Mortgage Loan repurchased
by
EMC pursuant to Sections 2.02 and 2.03 and by the Master Servicer pursuant
to
Section 3.19, in each case to the extent remitted by the Master Servicer to
the
Distribution Account pursuant to this Agreement and (f) the interest portion
of
any proceed received from the exercise of a Optional Termination, minus (2)(i)
all amounts relating to interest required to be reimbursed pursuant to Sections
4.02 and 4.05 or as otherwise set forth in this Agreement and (ii) any Net
Swap
Payment or Swap Termination Payment (not due to a Swap Provider Trigger Event
and to the extent not paid by the Swap Administrator from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) owed to the Swap
Administrator for payment to the Swap Provider for such Distribution Date and
any such payments remaining unpaid for any prior Distribution
Dates.
Interim
Certification:
The
certification by a Custodian substantially in the form of Exhibit Two to the
related Custodial Agreement.
Issuing
Entity:
Bear
Xxxxxxx Mortgage Funding Trust 2006-SL2.
LaSalle:
LaSalle
Bank National Association, and any successor in interest.
LaSalle
Custodial Agreement:
The
custodial agreement, dated as of August 30, 2006, among the Depositor, EMC,
as
seller and as Master Servicer, the Trustee and LaSalle, as a Custodian, in
substantially the form of Exhibit J-1 hereto.
Last
Scheduled Distribution Date:
Solely
for purposes of the face of the Certificates as follows: the Distribution Date
in September 2036.
Latest
Possible Maturity Date:
The
Distribution Date in the month following the final scheduled maturity date
of
the Mortgage Loan in the Trust Fund having the latest scheduled maturity date
as
of the Cut-off Date. For purposes of the Treasury regulations under Sections
860A through 860G of the Code, the latest possible maturity date of each Regular
Interest issued by REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V shall
be
the Latest Possible Maturity Date.
LIBOR
Business Day:
Shall
mean a day on which banks are open for dealing in foreign currency and exchange
in London and New York City.
Liquidated
Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan that has been
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which
the
Master Servicer has made a Final Recovery Determination with respect
thereto.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property, less the sum of related unreimbursed Advances, Servicing Fees
and Servicing Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court and
reasonable attorneys fees.
LPMI
Fee:
The fee
payable to the insurer for each Mortgage Loan subject to an LPMI Policy as
set
forth in such LPMI Policy.
LPMI
Policy:
A
policy of mortgage guaranty insurance issued by an insurer meeting the
requirements of Xxxxxx Mae and Xxxxxxx Mac in which the Master Servicer or
the
related subservicer of the related Mortgage Loan is responsible for the payment
of the LPMI Fee thereunder from collections on the related Mortgage
Loan.
Majority
Class C Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class C
Certificates.
Marker
Rate:
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC II
Pass-Through Rates for the REMIC II Regular Interests (other than REMIC II
Regular Interests AA and IO), with the rate on each such REMIC II Regular
Interest (other than REMIC II Regular Interest ZZ) subject to a cap equal to
the
least of (i) the One-Month LIBOR Pass-Through Rate for the Corresponding
Certificate, (ii) 11.00% per annum and (iii) the Net WAC Cap Rate for the REMIC
III Regular Interest the ownership of which is represented by the Corresponding
Certificate for the purpose of this calculation for such Distribution Date,
and
with the rate on REMIC II Regular Interest ZZ subject to a cap of zero for
the
purpose of this calculation; provided, however, that solely for this purpose,
the related cap with respect to each REMIC II Regular Interest (other than
REMIC
II Regular Interests AA, ZZ and IO) shall be multiplied by a fraction, the
numerator of which is 30 and the denominator of which is the actual number
of
days in the related Accrual Period.
Master
Servicer:
EMC
Mortgage Corporation, in its capacity as master servicer, and its successors
and
assigns.
Master
Servicer Information:
As
defined in Section 3.16.
Maximum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the percentage set forth in
the
related Mortgage Note as the maximum Mortgage Rate thereunder.
Maximum
Uncertificated Accrued Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC II Pass-Through Rate applicable to REMIC II Regular
Interest ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC II Regular Interest ZZ minus the REMIC II
Overcollateralization Amount, in each case for such Distribution Date, over
(ii)
the aggregate amount of Uncertificated Accrued Interest for such Distribution
Date on the REMIC II Regular Interests (other than REMIC II Regular Interests
AA, ZZ and IO), with the rate on each such REMIC II Regular Interest subject
to
a cap equal to the least of (x) the One-Month LIBOR Pass Through Rate for the
Corresponding Certificate, (y) 11.00% per annum and (z) the Net WAC Cap Rate
for
the REMIC III Regular Interest the ownership of which is represented by the
Corresponding Certificate for the purpose of this calculation for such
Distribution Date; provided, however, that solely for this purpose, the related
cap with respect to each REMIC II Regular Interest (other than REMIC II Regular
Interests AA, ZZ and IO) shall be multiplied by a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Accrual Period.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
Minimum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the percentage set forth in
the
related Mortgage Note as the minimum Mortgage Rate thereunder.
MOM
Loan:
With
respect to any Mortgage Loan, MERS acting as the mortgagee of such Mortgage
Loan, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns, at the origination thereof.
Monthly
Statement:
The
statement prepared and delivered by the Trustee pursuant to Section
5.06.
Moody’s:
Xxxxx’x
Investors Service, Inc., and any successor thereto.
Mortgage:
The
mortgage, deed of trust or other instrument creating a second lien on second
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents delivered to the related Custodian
to
be added to the Mortgage File pursuant to this Agreement and the related
Custodial Agreement.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement, dated as of August 30, 2006, between EMC,
as
seller and the Depositor, as purchaser in the form attached hereto as Exhibit
L.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection with
the repurchase of the Mortgage Loans pursuant to Section 10.01.
Mortgage
Loans:
Such of
the Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being identified in
the
Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Seller to reflect
the deletion of Deleted Mortgage Loans and the addition of Replacement Mortgage
Loans pursuant to the provisions of this Agreement) transferred to the Trustee
as part of the Trust Fund and from time to time subject to this Agreement,
the
Mortgage Loan Schedule being attached hereto as Exhibit B, with respect to
the
Mortgage Loans and as amended from time to time to reflect the repurchase or
substitution of Mortgage Loans pursuant to this Agreement or the Mortgage Loan
Purchase Agreement, as the case may be, setting forth the following information
with respect to each Mortgage Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Interest Rate;
(d) the
Servicing Fee Rate;
(e) the
Master Servicer's Fee Rate;
(f) the
LPMI
Fee; if applicable;
(g) the
Net
Rate;
(h) the
maturity date;
(i) the
stated original term to maturity;
(j) the
stated remaining term to maturity;
(k) the
original Principal Balance;
(l) the
first
payment date;
(m) the
principal and interest payment in effect as of the Cut-off Date;
(n) the
unpaid Principal Balance as of the Cut-off Date;
(o) the
Loan-to-Value Ratio at origination;
(p) the
insurer of any Primary Mortgage Insurance Policy;
(q) the
MIN
with respect to each MOM Loan;
(r) the
Gross
Margin, if applicable;
(s) the
next
Adjustment Date, if applicable;
(t) the
Maximum Mortgage Rate, if applicable;
(u) the
Minimum Mortgage Rate, if applicable;
(v) the
Periodic Rate Cap, if applicable;
(w) the
Loan
Group, if applicable;
(x) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(y) which
Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years or any other period;
(z) the
Prepayment Charge, if any;
(aa) lien
position (e.g., first lien or second lien);
(bb) a
code
indicating whether the Mortgage Loan is has a balloon payment;
(cc) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(dd) the
interest-only term, if applicable;
(ee) the
Mortgage Loan Seller; and
(ff) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (j)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
Mortgage
Note:
The
original executed note or other evidence of indebtedness of a Mortgagor under
a
Mortgage Loan.
Mortgage
Rate:
With
respect to each fixed rate Mortgage Loan, the rate set forth in the related
Mortgage Note. With respect to each Adjustable Rate Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligors on a Mortgage Note.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the related
Mortgage Rate less the sum of (i) the Servicing Fee Rate, (ii) the Trustee
Fee
Rate and (iii) the rate at which the LPMI Fee is calculated, if
any.
Net
Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Swap Agreement by either the Swap Provider or the Swap
Administrator, which net payment shall not take into account any Swap
Termination Payment.
Net
WAC Cap Rate:
With
respect to any Distribution Date and any Class of Class A, Class M or Class
B
Certificates, a per annum rate equal to the excess, if any, of (A) the weighted
average of the Net Mortgage Rates on the then outstanding Mortgage Loans,
weighted based on the Stated Principal Balances of such Mortgage Loans as of
the
related Due Date prior to giving effect to any reduction in the Stated Principal
Balances of such Mortgage Loans on such Due Date, over (B) a per annum rate
equal to the sum of the Net Swap Payment and Swap Termination Payment not due
to
a Swap Provider Trigger Event payable to the Swap Provider, in each case on
such
Distribution Date (to the extent not paid by the Supplemental Interest Trust
from any upfront payment received pursuant to any replacement interest rate
swap
agreement that may be entered into by the Supplemental Interest Trust Trustee),
divided by the outstanding
Stated
Principal Balance of the Mortgage Loans
as of
the related Due Date prior to giving effect to any reduction in the Stated
Principal Balances of such Mortgage Loans on such Due Date, multiplied by
12.
The Net
WAC Cap Rate for such Classes of Certificates will be calculated based on a
360-day year and the actual number of days elapsed in the related Accrual
Period. With respect to any Distribution Date and each REMIC III Regular
Interest the ownership of which is represented by a Class A, Class M or Class
B
Certificate, a per annum rate equal to the weighted average (adjusted for the
actual number of days elapsed in the related Accrual Period) of the
Uncertificated REMIC II Pass-Through Rates on the REMIC II Regular Interests
(other than REMIC II Regular Interest IO), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC II Regular Interest
immediately prior to such Distribution Date.
Non
Book-Entry Certificate:
Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Master
Servicer or other party hereto pursuant to this Agreement, that, in the good
faith judgment of the Master Servicer or such other party, will not or, in
the
case of a proposed advance, would not, be ultimately recoverable by it from
the
related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or
otherwise.
Notional
Amount:
With
respect to each Distribution Date and the Swap Agreement, the notional amount
for the related calculation period as set forth in the related schedule set
forth in Exhibit N.
Offered
Certificates:
Any of
the Class A, Class M, Class B-1, Class B-2 and Class B-3
Certificates.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President (however denominated), an Assistant
Vice
President, the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of the Depositor, the Seller or the Master Servicer (or
any other officer customarily performing functions similar to those performed
by
any of the above designated officers and also to whom, with respect to a
particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with a particular subject) or (ii), if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered
to
the Depositor, the Seller and/or the Trustee, as the case may be, as required
by
this Agreement.
One-Month
LIBOR:
With
respect to any Accrual Period, the rate determined by the Trustee on the related
Interest Determination Date on the basis of the rate for U.S. dollar deposits
for one month that appears on Telerate Screen Page 3750 as of 11:00 a.m. (London
time) on such Interest Determination Date. If such rate does not appear on
such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, such other service for displaying One-Month LIBOR
or comparable rates as may be reasonably selected by the Trustee), One-Month
LIBOR for the applicable Accrual Period will be the Reference Bank Rate. If
no
such quotations can be obtained by the Trustee and no Reference Bank Rate is
available, One-Month LIBOR will be One-Month LIBOR applicable to the preceding
Accrual Period. The establishment of One-Month LIBOR on each Interest
Determination Date by the Trustee and the Trustee’s calculation of the rate of
interest applicable to the Class A, Class M and Class B Certificates for the
related Accrual Period shall, in the absence of manifest error, be final and
binding.
One-Month
LIBOR Pass-Through Rate:
With
respect to each Class A, Class M Certificate and Class B Certificate and, for
purposes of the definitions of “Marker Rate” and “Maximum Uncertificated Accrued
Interest Deferral Amount”, the related REMIC III Regular Interest for which such
Certificate is the Corresponding Certificate, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for EMC, the Depositor or the
Master Servicer, reasonably acceptable to each addressee of such opinion;
provided that with respect to Section 2.05, 7.05, 7.07 or 11.01, or the
interpretation or application of the REMIC Provisions, such counsel must (i)
in
fact be independent of EMC, Depositor and the Master Servicer, (ii) not have
any
direct financial interest in EMC,
the
Depositor or the Master Servicer or in any affiliate of either, and (iii) not
be
connected with EMC, the Depositor or the Master Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
Optional
Termination:
The
termination of the Trust Fund created hereunder as a result of the purchase
of
all of the Mortgage Loans and any REO Property pursuant to Section 10.01
hereof.
Optional
Termination Date:
The
Distribution Date on which the Stated Principal Balance of all of the Mortgage
Loans is equal to or less than 20% of the Stated Principal Balance of all of
the
Mortgage Loans as of the Cut-off Date.
Original
Value:
The
value of the property underlying a Mortgage Loan based, in the case of the
purchase of the underlying Mortgaged Property, on the lower of an appraisal
or
the sales price of such property or, in the case of a refinancing, on an
appraisal.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan:
As of
any date of determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal Prepayment in full,
and that did not become a Liquidated Loan, prior to the end of the related
Prepayment Period.
Overcollateralization
Amount:
With
respect to any Distribution Date, the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the related Due Period) over
the
aggregate Certificate Principal Balance of the Certificates (other than the
Class C Certificates) on such Distribution Date (after taking into account
the
payment of principal other than any Extra Principal Distribution Amount on
such
Certificates).
Overcollateralization
Floor:
With
respect to the Certificates, an amount equal to 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Funds for
such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date (assuming that 100% of the Principal Funds
is
applied as a principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date (with the amount
pursuant to clause (y) deemed to be $0 if the Overcollateralization Amount
is
less than or equal to the Overcollateralization Target Amount on that
Distribution Date).
Overcollateralization
Target Amount:
With
respect to any Distribution Date (a) prior to the Stepdown Date, 3.35% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date,
(b) on or after the Stepdown Date and if a Trigger Event is not in effect,
the
greater of (i) the lesser of (1) 3.35% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date and (2) 6.70% of the then current
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Due
Period) and (ii) the Overcollateralization Floor or (c) on or after the Stepdown
Date and if a Trigger Event is in effect, the Overcollateralization Target
Amount for the immediately preceding Distribution Date.
Ownership
Interest:
As to
any Certificate, any ownership interest in such Certificate including any
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Pass-Through
Rate:
With
respect to the Class A, Class M and Class B Certificates and any Distribution
Date, a rate per annum equal to the least of (i) the related One-Month LIBOR
Pass-Through Rate for such Distribution Date, (ii) 11.00% per annum and (iii)
the Net WAC Cap Rate for such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amount determined for each REMIC II Regular Interest (other than
REMIC II Regular Interest IO) equal to the product of (a) the excess, if any,
of
the Uncertificated REMIC II Pass-Through Rate for such REMIC II Regular Interest
over the Marker Rate and (b) a notional amount equal to the Uncertificated
Principal Balance of such REMIC II Regular Interest, and the denominator of
which is the aggregate Uncertificated Principal Balance of such REMIC II Regular
Interests.
With
respect to the Class C Certificate, the Class C Certificate shall not have
a
Pass-Through Rate, but Current Interest for such Certificate and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to the Class C Interest for such Distribution Date.
With
respect to the Class IO Interest, Class IO Interest shall not have a
Pass-Through Rate, but Current Interest for such interest and each Distribution
Date shall be an amount equal to 100% of the amounts distributable to REMIC
II
Regular Interest IO for such Distribution Date.
With
respect to REMIC V Regular Interest IO, REMIC V Regular Interest IO shall not
have a Pass-Through Rate, but Current Interest for such Regular Interest and
each Distribution Date shall be an amount equal to 100% of the amounts
distributable to the Class IO Interest for such Distribution Date.
Percentage
Interest:
With
respect to any Certificate of a specified Class, the Percentage Interest set
forth on the face thereof or the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
the fixed percentage set forth in the related Mortgage Note, which is the
maximum amount by which the Mortgage Rate for such Mortgage Loan may increase
or
decrease (without regard to the Maximum Mortgage Rate or the Minimum Mortgage
Rate) on such Adjustment Date from the Mortgage Rate in effect immediately
prior
to such Adjustment Date.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) |
obligations
of the United States or any agency thereof, provided such obligations
are
backed by the full faith and credit of the United
States;
|
(ii) |
general
obligations of or obligations guaranteed by any state of the United
States
or the District of Columbia receiving the highest long-term debt
rating of
each Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by each Rating Agency, as evidenced in
writing;
|
(iii) |
commercial
or finance company paper which is then receiving the highest commercial
or
finance company paper rating of each Rating Agency, or such lower
rating
as will not result in the downgrading or withdrawal of the ratings
then
assigned to the Certificates by each Rating Agency, as evidenced
in
writing;
|
(iv) |
certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws
of the
United States or of any state thereof and subject to supervision
and
examination by federal and/or state banking authorities (including
the
Trustee in its commercial banking capacity), provided that the commercial
paper and/or long term unsecured debt obligations of such depository
institution or trust company are then rated one of the two highest
long-term and the highest short-term ratings of each such Rating
Agency
for such securities, or such lower ratings as will not result in
the
downgrading or withdrawal of the rating then assigned to the Certificates
by any Rating Agency, as evidenced in
writing;
|
(v) |
guaranteed
reinvestment agreements issued by any bank, insurance company or
other
corporation containing, at the time of the issuance of such agreements,
such terms and conditions as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by each
Rating
Agency, as evidenced in writing;
|
(vi) |
repurchase
obligations with respect to any security described in clauses (i)
and (ii)
above, in either case entered into with a depository institution
or trust
company (acting as principal) described in clause (v)
above;
|
(vii) |
securities
(other than stripped bonds, stripped coupons or instruments sold
at a
purchase price in excess of 115% of the face amount thereof) bearing
interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof which, at
the
time of such investment, have one of the two highest short term ratings
of
each Rating Agency (except if the Rating Agency is Moody’s, such rating
shall be the highest commercial paper rating of Moody’s for any such
securities), or such lower rating as will not result in the downgrading
or
withdrawal of the rating then assigned to the Certificates by each
Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency;
|
(viii) |
interests
in any money market fund (including any such fund managed or advised
by
the Trustee or any affiliate thereof) which at the date of acquisition
of
the interests in such fund and throughout the time such interests
are held
in such fund has the highest applicable short term rating by each
Rating
Agency or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by each
Rating
Agency, as evidenced in writing;
|
(ix) |
short
term investment funds sponsored by any trust company or banking
association incorporated under the laws of the United States or any
state
thereof (including any such fund managed or advised by the Trustee
or the
Master Servicer or any affiliate thereof) which on the date of acquisition
has been rated by each Rating Agency in their respective highest
applicable rating category or such lower rating as will not result
in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by each Rating Agency, as evidenced in writing;
and
|
(x) |
such
other investments having a specified stated maturity and bearing
interest
or sold at a discount acceptable to each Rating Agency and as will
not
result in the downgrading or withdrawal of the rating then assigned
to the
Certificates by any Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency;
|
provided,
that no such instrument shall be a Permitted Investment if such instrument
(i)
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a premium or (iii)
is purchased at a deep discount; provided further that no such instrument shall
be a Permitted Investment (A) if such instrument evidences principal and
interest payments derived from obligations underlying such instrument and the
interest payments with respect to such instrument provide a yield to maturity
of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (B) if it may be redeemed at a price below the purchase price
(the foregoing clause (B) not to apply to investments in units of money market
funds pursuant to clause (viii) above); provided further that no amount
beneficially owned by any REMIC may be invested in investments (other than
money
market funds) treated as equity interests for federal income tax purposes,
unless the Trustee shall receive an Opinion of Counsel, at the expense of the
Trustee, to the effect that such investment will not adversely affect the status
of any such REMIC as a REMIC under the Code or result in the imposition of
a tax
on any such REMIC. Permitted Investments that are subject to prepayment or
call
may not be purchased at a price in excess of par.
Permitted
Transferee:
Any
person (x) other than (i) the United States, any State or political subdivision
thereof, any possession of the United States 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) that
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 or (v) an electing large partnership within
the meaning of Section 775(a) of the Code, (y) that is a citizen or resident
of
the United States, a corporation, partnership (other than a partnership that
has
any direct or indirect foreign partners) or other entity (treated as a
corporation or a partnership for federal income tax purposes), created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is
able
to exercise primary supervision over the administration of the trust and one
or
more United States persons have authority to control all substantial decisions
of the trust or if it has a valid election in effect under applicable U.S.
Treasury regulations to be treated as a United States person and (z) other
than
any other Person so designated by the Trustee based upon an Opinion of Counsel
addressed to the Trustee (which shall not be an expense of the Trustee) that
states that the Transfer of an Ownership Interest in a Residual Certificate
to
such Person may cause REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to
fail
to qualify as a REMIC at any time that any 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, joint-stock
company, limited liability company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Plan:
Any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
Plan
Assets:
Assets
of a Plan within the meaning of Department of Labor regulation 29 C.F.R. §
2510.3-101.
Prepayment
Assumption:
A
prepayment rate for the Mortgage Loans of 35% CPR.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note.
Prepayment
Charge Waiver Amount:
Any
amount paid by the Master Servicer to the Trustee in respect of waived
Prepayment Charges pursuant to Section 4.01(a).
Prepayment
Interest Excess:
With
respect to any Distribution Date, for each Mortgage Loan that was the subject
of
a Principal Prepayment in full or in part during the portion of the related
Prepayment Period occurring between the first day of the calendar month in
which
such Distribution Date occurs and the Determination Date of the calendar month
in which such Distribution Date occurs, an amount equal to interest (to the
extent received) at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the first day of
the
calendar month in which such Distribution Date occurs and ending on the last
date through which interest is collected from the related
Mortgagor.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, for each Mortgage Loan that was the subject
of
a partial Principal Prepayment, or a Principal Prepayment in full during the
related Prepayment Period, or that became a Liquidated Loan during the prior
calendar month, (other than a Principal Prepayment in full resulting from the
purchase of a Mortgage Loan pursuant to Section 2.02, 2.03, 3.19 or 10.01
hereof), the amount, if any, by which (i) one month’s interest at the applicable
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
immediately prior to such prepayment (or liquidation) or in the case of a
partial Principal Prepayment on the amount of such prepayment (or liquidation
proceeds) exceeds (ii) the amount of interest paid or collected in connection
with such Principal Prepayment or such liquidation proceeds less the sum of
(a)
the Trustee Fee, (b) the Servicing Fee and the LPMI Fee, if any.
Prepayment
Period:
As to
any Distribution Date, the period commencing on the 16th day of the month prior
to the month in which the related Distribution Date occurs and ending on the
15th day of the month in which such Distribution Date occurs.
Primary
Mortgage Insurance Policy:
Any
primary mortgage guaranty insurance policy issued in connection with a Mortgage
Loan which provides compensation to a Mortgage Note Holder in the event of
default by the obligor under such Mortgage Note or the related security
instrument, if any or any replacement policy therefor through the related
Accrual Period for such Class relating to a Distribution Date.
Principal
Distribution Amount:
With
respect to any Distribution Date, an amount equal to (x) the sum of (1) the
Principal Funds for such Distribution Date and (2) any Extra Principal
Distribution Amount for such Distribution Date minus (y) the amount of any
Overcollateralization Release Amount for such Distribution Date.
Principal
Funds:
With
respect to any Distribution Date, (1) the sum, without duplication, of (a)
all
scheduled principal collected during the related Due Period, (b) all Advances
relating to principal made on or before the Distribution Account Deposit Date,
(c) Principal Prepayments exclusive of prepayment charges or penalties collected
during the related Prepayment Period, (d) the Stated Principal Balance of each
Mortgage Loan that was repurchased by EMC on its own behalf as Seller) pursuant
to Sections 2.02 and 2.03 and by the Master Servicer pursuant to Section 3.19,
(e) the aggregate of all Substitution Adjustment Amounts for the related
Determination Date in connection with the substitution of Mortgage Loans
pursuant to Section 2.03(c), (f) all Liquidation Proceeds and Subsequent
Recoveries collected during the related Prepayment Period (to the extent such
Liquidation Proceeds and Subsequent Recoveries relate to principal), in each
case to the extent remitted by the Master Servicer to the Distribution Account
pursuant to this Agreement and (g) amounts in respect of principal paid by
the
Majority Class C Certificateholder pursuant to Section 10.01, minus (2)(i)
all
amounts required to be reimbursed pursuant to Sections 4.02 and 4.05 or as
otherwise set forth in this Agreement and (ii) any Net Swap Payments or Swap
Termination Payments (not due to a Swap Provider Trigger Event and to the extent
not paid by the Swap Administrator from any upfront payment received pursuant
to
any replacement interest rate swap agreement that may be entered into by the
Supplemental Interest Trust Trustee) owed to the Swap Administrator for payment
to the Swap Provider for such Distribution Date and any such payments remaining
unpaid for any prior Distribution Dates, in each case to the extent not paid
from Interest Funds.
Principal
Prepayment:
Any
Mortgagor payment or other recovery of (or proceeds with respect to) principal
on a Mortgage Loan (including loans purchased or repurchased under Sections
2.02, 2.03, 3.19 and 10.01 hereof) that is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment. Partial Principal Prepayments shall be applied by
the
Master Servicer, as appropriate, in accordance with the terms of the related
Mortgage Note.
Private
Certificates:
Any of
the Class B-4, Class C and Residual Certificates.
Prospectus
Supplement:
The
Prospectus Supplement dated August 25, 2006 relating to the public offering
of
the Offered Certificates.
Protected
Account:
The
separate Eligible Account established and maintained by the Master Servicer
with
respect to the Mortgage Loans and REO Property in accordance with Section 4.01
hereof.
PUD:
A
Planned Unit Development.
Purchase
Price:
With
respect to any Mortgage Loan (x) required to be repurchased by the Seller
pursuant to Section 2.02 or 2.03 hereof or (y) that EMC has a right to purchase
pursuant to Section 3.19 hereof, an amount equal to the sum of (i) 100% of
the
outstanding principal balance of the Mortgage Loan as of the date of such
purchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the
acquisition), plus (ii) accrued interest thereon at the applicable Mortgage
Rate
through the first day of the month in which the Purchase Price is to be
distributed to Certificateholders, reduced by any portion of the Servicing
Fee,
Servicing Advances and Advances payable to the purchaser of the Mortgage Loan
plus (iii) any costs and damages (if any) incurred by the Trust in connection
with any violation of such Mortgage Loan of any anti-predatory lending
laws.
QIB:
A
Qualified Institutional Buyer as defined in Rule 144A promulgated under the
Securities Act.
Rating
Agency:
Each of
Xxxxx’x and S&P. If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of
which designation shall be given to the Trustee. References herein to a given
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized
Loss:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan as of the commencement of the calendar month
in
which the Final Recovery Determination was made, plus (ii) accrued interest
from
the Due Date as to which interest was last paid by the Mortgagor through the
end
of the calendar month in which such Final Recovery Determination was made,
calculated in the case of each calendar month during such period (A) at an
annual rate equal to the annual rate at which interest was then accruing on
such
Mortgage Loan and (B) on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, minus (iii) the proceeds, if any, received
in
respect of such Mortgage Loan during the calendar month in which such Final
Recovery Determination was made, net of amounts that are payable therefrom
to
the Master Servicer pursuant to this Agreement. In addition, to the extent
the
Master Servicer receives Subsequent Recoveries with respect to any Mortgage
Loan, the amount of the Realized Loss with respect to that Mortgage Loan will
be
reduced to the extent such recoveries are distributed to any Class of
Certificates or applied to increase Excess Spread on any Distribution
Date.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the unpaid principal balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
plus
(iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired
and
ending with the calendar month in which such Final Recovery Determination was
made, minus (iv) the aggregate of all unreimbursed Advances and Servicing
Advances.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
Record
Date:
With
respect to any Distribution Date and the Certificates (other than the Class
C
Certificates and Residual Certificates), so long as such Classes of Certificates
are Book-Entry Certificates, the Business Day preceding such Distribution Date,
and otherwise, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs. With respect to
the
Class C Certificates and Residual Certificates, so long as such classes of
Certificates remain non Book-Entry Certificates, the close of business on the
last Business Day of the month preceding the month in which such Distribution
Date occurs.
Reference
Banks:
Shall
mean leading banks selected by the Trustee and engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London, (ii) which have been designated as
such
by the Trustee and (iii) which are not controlling, controlled by, or under
common control with, the Depositor, the Seller or the Master
Servicer.
Reference
Bank Rate:
With
respect to any Accrual Period shall mean the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the offered rates
for United States dollar deposits for one month that are quoted by the Reference
Banks as of 11:00 a.m., New York City time, on the related Interest
Determination Date to prime banks in the London interbank market for a period
of
one month in an amount approximately equal to the aggregate Certificate
Principal Balance of the Class A, Class M and Class B Certificates for such
Accrual Period, provided that at least two such Reference Banks provide such
rate. If fewer than two offered rates appear, the Reference Bank Rate will
be
the arithmetic mean, rounded upwards, if necessary, to the nearest whole
multiple of 0.03125%, of the rates quoted by one or more major banks in New
York
City, selected by the Trustee, as of 11:00 a.m., New York City time, on such
date for loans in United States dollars to leading European banks for a period
of one month in amounts approximately equal to the aggregate Certificate
Principal Balance of the Class A, Class M and Class B Certificates for such
Accrual Period.
Regular
Certificate:
Any
Certificate other than a Residual Certificate.
Regular
Interest:
A
“regular interest” in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act, as amended, or similar state law.
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 Relief Act.
Remaining
Excess Spread:
With
respect to any Distribution Date, the Excess Spread less any Extra Principal
Distribution Amount, in each case for such Distribution Date.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of section 860D of the
Code.
REMIC
I:
The
segregated pool of assets described in the Preliminary Statement and Section
5.07(a).
REMIC
I Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. Each REMIC I Regular
Interest shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement hereto.
The
REMIC I Regular Interests consist of REMIC I Regular Interest I-1-A through
REMIC I Regular Interest I-45-B, each as designated in the Preliminary Statement
hereto.
REMIC
II:
The
segregated pool of assets described in the Preliminary Statement and Section
5.07(a).
REMIC
II Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount (subject to adjustment based on
the
actual number of days elapsed in the respective Accrual Period) equal to (a)
the
product of (i) the aggregate Stated Principal Balance of the Mortgage Loans
and
the related REO Properties then outstanding and (ii) the Uncertificated REMIC
II
Pass-Through Rate for REMIC II Regular Interest AA minus the Marker Rate,
divided by (b) 12.
REMIC
II Overcollateralization Amount:
With
respect to any date of determination, (i) 1.00% of the aggregate Uncertificated
Principal Balance of the REMIC II Regular Interests (other than REMIC II Regular
Interest IO) minus (ii) the aggregate Uncertificated Principal Balance of each
REMIC II Regular Interest for which a Class A, Class M or Class B Certificate
is
a Corresponding Certificate, in each case as of such date of
determination.
REMIC
II Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and the related REO
Properties then outstanding and (ii) 1 minus a fraction, the numerator of which
is two (2) times the aggregate Uncertificated Principal Balance of each REMIC
II
Regular Interest for which a Class A, Class M or Class B Certificate is a
Corresponding Certificate and the denominator of which is the aggregate
Uncertificated Principal Balance of each REMIC II Regular Interest for which
a
Class A, Class M or Class B Certificate is a Corresponding Certificate and
REMIC
II Regular Interest ZZ.
REMIC
II Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the related Uncertificated REMIC
II
Pass-Through Rate in effect from time to time, and (other than REMIC II Regular
Interest IO) shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are
set
forth in the Preliminary Statement hereto.
REMIC
II Required Overcollateralization Amount:
1.00%
of the Overcollateralization Target Amount.
REMIC
III:
The
segregated pool of assets described in the Preliminary Statement and Section
5.07(a).
REMIC
III Regular Interest:
The
Class C Interest, Class IO Interest or any Regular Interest in REMIC III the
ownership of which is represented by any of the Class A, Class M and Class
B
Certificates.
REMIC
IV:
The
segregated pool of assets consisting of the Class C Interest conveyed in trust
to the Trustee, for the benefit of the Holders of the Class C Certificates
and
the Class RX Certificate (in respect of the Class R-4 Interest), with respect
to
which a separate REMIC election is to be made.
REMIC
V:
The
segregated pool of assets consisting of the Class IO Interest conveyed in trust
to the Trustee, for the benefit of the holders of REMIC V Regular Interest
IO
and the Class RX Certificate (in respect of the Class R-5 Interest), with
respect to which a separate REMIC election is to be made.
REMIC
Opinion:
Shall
mean an Opinion of Counsel to the effect that the proposed action will not
cause
any of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to fail to qualify
as a
REMIC at any time that any Certificates are outstanding.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of the Code,
and
related provisions, and proposed, temporary and final regulations and published
rulings, notices and announcements promulgated thereunder, as the foregoing
may
be in effect from time to time, as well as provisions of applicable state
laws.
REMIC
Regular Interests:
The
REMIC I Regular Interests and REMIC II Regular Interests.
Remittance
Date:
Shall
mean the Business Day immediately preceding the Distribution Account Deposit
Date.
Remittance
Report:
Shall
mean a report to the Trustee in an electronic format (or by such other means
as
the Master Servicer and the Trustee may agree from time to time) containing
such
data and information, as agreed to by the Master Servicer and the Trustee,
required to enable the Trustee to prepare the Monthly Statement to
Certificateholders.
REO
Imputed Interest:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of REMIC I, one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such REO Property (or, in the case
of
the first such calendar month, of the related Mortgage Loan, if appropriate)
as
of the close of business on the Distribution Date in such calendar
month.
REO
Property:
A
Mortgaged Property acquired by the Master Servicer through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Replacement
Mortgage Loan:
A
Mortgage Loan or Mortgage Loans in the aggregate substituted by the Seller
for a
Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, (i) have a Stated Principal Balance, after
deduction of the principal portion of the Scheduled Payment due in the month
of
substitution, not in excess of, and not less than 90% of, the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) if the Replacement Mortgage Loan
is a
fixed rate Mortgage Loan, have a fixed Mortgage Rate not less than or more
than
1% per annum higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii)
have the same or higher credit quality characteristics than that of the Deleted
Mortgage Loan; (iv) have a Loan-to-Value Ratio no higher than that of the
Deleted Mortgage Loan; (v) have a remaining term to maturity no greater than
(and not more than one year less than) that of the Deleted Mortgage Loan; (vi)
not permit conversion of the Mortgage Rate from a fixed rate to a variable
rate;
(vii) have the same lien priority as the Deleted Mortgage Loan; (viii)
constitute the same occupancy type as the Deleted Mortgage Loan or be owner
occupied; (ix) if the Replacement Mortgage Loan is an Adjustable Rate Mortgage
Loan, have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate
on
the Deleted Mortgage Loan, (x) if the Replacement Mortgage Loan is an Adjustable
Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum
Mortgage Rate of the Deleted Mortgage Loan, (xi) if the Replacement Mortgage
Loan is an Adjustable Rate Mortgage Loan, have a Gross Margin equal to or
greater than the Gross Margin of the Deleted Mortgage Loan, (xii) if the
Replacement Mortgage Loan is an Adjustable Rate Mortgage Loan, have a next
Adjustment Date not more than two months later than the next Adjustment Date
on
the Deleted Mortgage Loan, (xiii) comply with each representation and warranty
set forth in Section 7 of the Mortgage Loan Purchase Agreement and (xiv) the
Custodian has delivered a Final Certification noting no defects or
exceptions.
Reportable
Event:
The
meaning set forth in Section 3.16(a)(iii).
Repurchase
Price:
With
respect to each Mortgage Loan, a price equal to (i) the outstanding principal
balance of such Mortgage Loan, plus (ii) interest on such outstanding principal
balance at the Mortgage Rate (net of the Servicing Fee Rate) from the last
date
through which interest has been paid to the end of the month of repurchase,
less
(iii) amounts advanced by the Master Servicer in respect of such repurchased
Mortgage Loan which are being held in the Collection Account for remittance
to
the Trustee plus (iv) any costs and damages (if any) incurred by the Trust
in
connection with any violation of such Mortgage Loan of any anti-predatory
lending laws.
Request
for Release:
The
Request for Release to be submitted by the Seller or the Master Servicer to
the
respective Custodian substantially in the form of Exhibit G hereto or other
form
attached as an exhibit to the related Custodial Agreement. Each Request for
Release furnished to the respective Custodian by the Seller or the Master
Servicer shall be in duplicate and shall be executed by an officer of such
Person or a Servicing Officer (or, if furnished electronically to the respective
Custodian, shall be deemed to have been sent and executed by an officer of
such
Person or a Servicing Officer) of the Seller or the Master Servicer, as
applicable.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Reserve
Fund:
Shall
mean the separate trust account created and maintained by the Trustee pursuant
to Section 3.21 hereof.
Reserve
Fund Deposit:
With
respect to the Reserve Fund, an amount equal to $5,000, which the Depositor
shall initially deposit into the Reserve Fund pursuant to Section 3.21
hereof.
Residual
Certificates:
The
Class R-1, Class R-2, Class R-3 and Class RX Certificates (representing
ownership of the Class R-4 Interest and Class R-5 Interest), each evidencing
the
sole class of Residual Interests in the related REMIC.
Residual
Interest:
The
sole class of Residual Interests in a REMIC within the meaning of Section
860G(a)(2) of the Code.
Responsible
Officer:
With
respect to the Trustee, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, or any Trust Officer with specific
responsibility for the transactions contemplated hereby, any other officer
customarily performing functions similar to those performed by any of the above
designated officers or other officers of the Trustee specified by the Trustee,
as 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.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., and any
successor thereto.
Xxxxxxxx-Xxxxx
Act:
means
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
has the
meaning set forth in Section 3.16(a)(iv).
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., and any
successor thereto.
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.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
Seller:
EMC in
its capacity as seller of the Mortgage Loans to the Depositor.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable legal fees) incurred in the performance by the Master
Servicer of its servicing obligations hereunder, including, but not limited
to,
the cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
and including any expenses incurred in relation to any such proceedings that
result from the Mortgage Loan being registered in the MERS® System, (iii) the
management and liquidation of any REO Property (including, without limitation,
realtor’s commissions) and (iv) compliance with any obligations under Section
3.07 hereof to cause insurance to be maintained.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of
the
Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage
Loan payable solely from interest collections as of the Due Date in the month
preceding the month in which such Distribution Date occurs or, in the event
of
any payment of interest that accompanies a Principal Prepayment in full during
the related Due Period made by the Mortgagor immediately prior to such
prepayment, interest at the Servicing Fee Rate on the Stated Principal Balance
of such Mortgage Loan for the period covered by such payment of
interest.
Servicing
Fee Rate:
0.500%
per annum.
Servicing
Officer:
Any
officer of the Master 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 Trustee by
the
Master Servicer on the Closing Date pursuant to this Agreement, as such list
may
from time to time be amended.
Significance
Estimate:
With
respect to any Distribution Date, and in accordance with Item 1115 of Regulation
AB, shall be an amount determined based on the reasonable good-faith estimate
by
the Seller or its affiliate of the aggregate maximum probable exposure of the
outstanding Class A, Class M and Class B Certificates to the Interest Swap
Agreement.
Significance
Percentage:
With
respect to any Distribution Date, and in accordance with Item 1115 of Regulation
AB, shall be a percentage equal to the Significance Estimate divided by the
aggregate outstanding Certificate Principal Balance of the Class A, Class M
and
Class B Certificates, prior to the distribution of the Principal Distribution
Amount on such Distribution Date.
Sixty-Day
Plus Delinquency Percentage:
With
respect to any Distribution Date, is the arithmetic average for each of the
three successive Distribution Dates ending with the applicable Distribution
Date
of the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Mortgage Loans that are 60 or more
days delinquent in the payment of principal or interest for the relevant
Distribution Date, including any Mortgage Loans in foreclosure, REO and Mortgage
Loans with a related Mortgagor subject to bankruptcy proceedings, and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans immediately preceding such Distribution Date.
Sponsor:
EMC
Mortgage Corporation, in its capacity as sponsor hereunder.
Startup
Day:
The
Startup Day for each REMIC formed hereunder shall be the Closing
Date.
Stated
Principal Balance:
With
respect to any Mortgage Loan or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date (and irrespective of
any
delinquency in their payment), (ii) all Principal Prepayments with respect
to
such Mortgage Loan received prior to or during the related Prepayment Period,
and all Liquidation Proceeds to the extent applied by the Master Servicer as
recoveries of principal in accordance with Section 3.09 with respect to such
Mortgage Loan, that were received by the Master Servicer as of the close of
business on the last day of the calendar month immediately preceding such
Distribution Date and (iii) any Realized Losses on such Mortgage Loan incurred
during the related Due Period. The Stated Principal Balance of a Liquidated
Loan
equals zero.
Stepdown
Date:
The
earlier to occur of (I) the first Distribution Date following the Distribution
Date for which the Certificate Principal Balance for each of the Class A
Certificates has been reduced to zero, and (II) the later to occur of (a) the
Distribution Date in September 2009 or (b) the first Distribution Date on which
the Current Specified Enhancement Percentage is greater than or equal to
49.60%.
Subordinated
Certificates:
The
Class M, Class B, Class C and Residual Certificates.
Subsequent
Recoveries:
As of
any Distribution Date, amounts received by the Master Servicer (net of any
related expenses permitted to be reimbursed pursuant to Section 4.02) or surplus
amounts held by the Master Servicer to cover estimated expenses (including,
but
not limited to, recoveries in respect of the representations and warranties
made
by the Seller pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a Mortgage Loan that was the subject of a liquidation or final
disposition of any REO Property prior to the related Prepayment Period that
resulted in a Realized Loss.
Subservicing
Agreement:
Any
agreement entered into between the Master Servicer and a subservicer with
respect to the subservicing of any Mortgage Loan hereunder by such
subservicer.
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(c).
Successor
Master Servicer:
The
meaning ascribed to such term pursuant to Section 8.02.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 3.21 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Administration Agreement and the Swap Account. For the
avoidance of doubt, the Supplemental Interest Trust, the Swap Agreement, the
Swap Account and the Swap Administration Agreement do not constitute parts
of
the Trust Fund or any REMIC.
Supplemental
Interest Trust Trustee:
LaSalle, not in its individual capacity but solely in its capacity as
supplemental interest trust trustee under the Swap Administration Agreement
and
the Swap Agreement and any successor thereto, and any corporation or national
banking association resulting from or surviving any consolidation or merger
to
which it or its successors may be a party and any successor supplemental
interest trust trustee as may from time to time be serving as successor
supplemental interest trust trustee.
Swap
Account:
The
separate trust account created and maintained by the Swap Administrator, and
held within the Supplemental Interest Trust, pursuant to the Swap Administration
Agreement.
Swap
Administrator:
LaSalle
acting as swap administrator under the Swap Administration
Agreement.
Swap
Administration Agreement:
The
Swap Administration Agreement, dated August 30, 2006, pursuant to which the
Swap
Administrator will make payments to the Swap Provider and the Class A, Class
M
and Class B Certificateholders, and certain other payments, as such agreement
may be amended or supplemented from time to time.
Swap
Agreement:
The
interest rate swap agreement between the Swap Provider and Supplemental Interest
Trust Trustee, acting as trustee on behalf of the Supplemental Interest Trust,
together with any schedules, confirmations or other agreements relating thereto,
attached hereto as Exhibit M.
Swap
LIBOR:
For any
Distribution Date, a per annum rate equal to the Floating Rate Option (as
defined in the Swap Agreement) for the related Calculation Period (as defined
in
the Swap Agreement).
Swap
Optional Termination Payment:
As
defined in Section 10.01.
Swap
Provider:
The
swap provider under the Swap Agreement either (a) entitled to receive payments
from the Swap Administrator from amounts payable by the Trust Fund under this
Agreement or (b) required to make payments to the Swap Administrator for payment
to the Trust Fund, in either case pursuant to the terms of the Swap Agreement,
and any successor in interest or assign. Initially, the Swap Provider shall
be
Bear Xxxxxxx Financial Products Inc.
Swap
Provider Trigger Event:
With
respect to any Distribution Date, (i) an Event of Default under the Swap
Agreement with respect to which the Swap Provider is a Defaulting Party, (ii)
a
Termination Event under the Swap Agreement with respect to which the Swap
Provider is the sole Affected Party, or (iii) an Additional Termination Event
under the Swap Agreement with respect to which the Swap Provider is the sole
Affected Party.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment to be made by the Swap Administrator to the Swap Provider from
payments from the Trust Fund, or by the Swap Provider to the Swap Administrator
for payment to the Trust Fund, as applicable, pursuant to the terms of the
Swap
Agreement.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
Regulation Sections 1.860F-4(d) and 301.6231(a)(7)-1T. The holder of the
greatest Percentage Interest in a Class of Residual Certificates shall be the
Tax Matters Person for the related REMIC. The Trustee, or any successor thereto
or assignee thereof, shall serve as tax administrator hereunder and as agent
for
the related Tax Matters Person.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Transfer
Affidavit:
As
defined in Section 6.02.
Trigger
Event:
With
respect to any Distribution Date, a “ Trigger Event” shall have occurred if any
of the following tests is not satisfied: (i) the Sixty-Day Plus Delinquency
Percentage is less than 16.10% of the Current Specified Enhancement Percentage,
or (ii) (A) for any Distribution Date from and including the Distribution Date
in September 2008 to and including the Distribution Date in August
2009,
the Cumulative Realized Loss Percentage for such Distribution Date is less
than
2.10% plus an additional 1/12th of 2.65% for each Distribution Date thereafter
up to and including the Distribution Date in August 2009, (B) for any
Distribution Date from and including the Distribution Date in September 2009
to
and including the Distribution Date in August 2010, the Cumulative Realized
Loss
Percentage for such Distribution Date is less than 4.75% plus an additional
1/12th of 2.60% for each Distribution Date thereafter up to and including the
Distribution Date in August 2010, (C) for any Distribution Date from and
including the Distribution Date in September 2010 to and including the
Distribution Date in August 2011, the Cumulative Realized Loss Percentage for
such Distribution Date is less than 7.35% plus an additional 1/12th of 1.40%
for
each Distribution Date thereafter up to and including the Distribution Date
in
August 2011, (D) for any Distribution Date from and including the Distribution
Date in September 2011 to and including the Distribution Date in August 2012,
the Cumulative Realized Loss Percentage for such Distribution Date is less
than
8.75% plus an additional 1/12th of 0.50% for each Distribution Date thereafter
up to and including the Distribution Date in August 2012, and (E) for any
Distribution Date thereafter, the Cumulative Realized Loss Percentage for such
Distribution Date is less than 9.25%.
Trust
Fund or Trust:
The
corpus of the trust created hereunder consisting of (i) the Mortgage Loans
and
all interest accruing and principal due with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date Principal Balance
thereof; (ii) the Distribution Account, the Reserve Fund and the Protected
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
mortgagee’s rights under the Insurance Policies with respect to the Mortgage
Loans; (v) the rights under the Swap Administration Agreement relating to the
Certificates; (vi) the rights under the Mortgage Loan Purchase Agreement; and
(vii) all proceeds of the foregoing, including proceeds of conversion, voluntary
or involuntary, of any of the foregoing into cash or other liquid property.
The
Reserve Fund shall constitute an asset of the Trust Fund but will not be
included in REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V.
Trustee:
LaSalle, for the benefit of the Certificateholders under this Agreement, a
national banking association and any successor thereto, and any corporation
or
national banking association resulting from or surviving any consolidation
or
merger to which it or its successors may be a party and any successor trustee
as
may from time to time be serving as successor trustee hereunder.
Trustee
Fee:
As to
each Mortgage Loan and any Distribution Date, a per annum fee equal to 0.0180%
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
Due
Date in the month preceding the month in which such Distribution Date
occurs.
Trustee
Information:
As
defined in Section 3.16.
Uncertificated
Accrued Interest:
With
respect to each REMIC Regular Interest on each Distribution Date, an amount
equal to one month’s interest at the related Uncertificated Pass-Through Rate on
the related Uncertificated Principal Balance or related Uncertificated Notional
Amount of such REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls (allocated to such REMIC Regular Interests as set forth
in
Section 1.02).
Uncertificated
Notional Amount:
With
respect to the Class C Interest and any Distribution Date, an amount equal
to
the aggregate Uncertificated Principal Balance of the REMIC II Regular Interests
(other than REMIC II Regular Interest IO) for such Distribution
Date.
With
respect to REMIC II Regular Interest IO and each Distribution Date listed below,
the aggregate Uncertificated Principal Balance of the REMIC I Regular Interests
ending with the designation “A” listed below:
Distribution
Date
|
REMIC
I Regular Interests
|
1
|
I-1-A
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through I-45-A
|
10
|
I-10-A
through I-45-A
|
11
|
I-11-A
through I-45-A
|
12
|
I-12-A
through I-45-A
|
13
|
I-13-A
through I-45-A
|
14
|
I-14-A
through I-45-A
|
15
|
I-15-A
through I-45-A
|
16
|
I-16-A
through I-45-A
|
17
|
I-17-A
through I-45-A
|
18
|
I-18-A
through I-45-A
|
19
|
I-19-A
through I-45-A
|
20
|
I-20-A
through I-45-A
|
21
|
I-21-A
through I-45-A
|
22
|
I-22-A
through I-45-A
|
23
|
I-23-A
through I-45-A
|
24
|
I-24-A
through I-45-A
|
25
|
I-25-A
through I-45-A
|
26
|
I-26-A
through I-45-A
|
27
|
I-27-A
through I-45-A
|
28
|
I-28-A
through I-45-A
|
29
|
I-29-A
through I-45-A
|
30
|
I-30-A
through I-45-A
|
31
|
I-31-A
through I-45-A
|
32
|
I-32-A
through I-45-A
|
33
|
I-33-A
through I-45-A
|
34
|
I-34-A
through I-45-A
|
35
|
I-35-A
through I-45-A
|
36
|
I-36-A
through I-45-A
|
37
|
I-37-A
through I-45-A
|
38
|
I-38-A
through I-45-A
|
39
|
I-39-A
through I-45-A
|
40
|
I-40-A
through I-45-A
|
41
|
I-41-A
through I-45-A
|
42
|
I-42-A
through I-45-A
|
43
|
I-43-A
through I-45-A
|
44
|
I-44-A
through I-45-A
|
45
|
I-45-A
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest IO. With
respect to REMIC V Regular Interest IO, an amount equal to the Uncertificated
Notional Amount of the Class IO Interest.
Uncertificated
Pass-Through Rate:
The
Uncertificated REMIC I Pass-Through Rate or Uncertificated REMIC II Pass-Through
Rate.
Uncertificated
Principal Balance:
The
amount of REMIC Regular Interests and Class C Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest and Class C Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
uncertificated principal balance. On each Distribution Date, the Uncertificated
Principal Balance of the REMIC Regular Interests shall be reduced by all
distributions of principal made on such REMIC Regular Interests on such
Distribution Date pursuant to Section 6.07 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 6.05, and the Uncertificated Principal Balance
of
REMIC II Regular Interest ZZ shall be increased by interest deferrals as
provided in Section 6.07(c)(1)(ii). The Uncertificated Principal Balance of
each
REMIC Regular Interest and Class C Interest shall never be less than zero.
With
respect to the Class C Interest as of any date of determination, an amount
equal
to the excess, if any, of (A) the then aggregate Uncertificated Principal
Balance of the REMIC II Regular Interests over (B) the then aggregate
Certificate Principal Balance of the Class A, Class M and Class B Certificates
then outstanding.
Uncertificated
REMIC I Pass-Through Rate:
With
respect to each REMIC I Regular Interest ending with the designation “A” and any
Distribution Date, a per annum rate equal to the weighted average Net Mortgage
Rate of the Mortgage Loans multiplied by 2, subject to a maximum rate of
10.4780%. With respect to each REMIC I Regular Interest ending with the
designation “B” and any Distribution Date, the greater of (x) a per annum rate
equal to the excess, if any, of (1) 2 multiplied by the weighted average Net
Mortgage Rate of the Mortgage Loans over (2) 10.4780%, and (y) 0.00% per annum.
Uncertificated
REMIC II Pass-Through Rate:
With
respect to REMIC II Regular Interest AA, each REMIC II Regular Interest for
which a Class A, Class M or Class B Certificate is the Corresponding Certificate
and REMIC II Regular Interest ZZ, and any Distribution Date, a per annum rate
equal to the weighted average of (x) the Uncertificated REMIC I Pass-Through
Rates for the REMIC I Regular Interests ending with the designation “B” for such
Distribution Date and (y) the rates listed below for the REMIC I Regular
Interests ending with the designation “A” for such Distribution Date, in each
case weighted on the basis of the Uncertificated Principal Balances of each
such
REMIC I Regular Interest for such Distribution Date:
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
1
|
I-1-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
2
|
I-2-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
3
|
I-3-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
and I-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
4
|
I-4-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
5
|
I-5-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
6
|
I-6-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
7
|
I-7-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
8
|
I-8-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
9
|
I-9-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
10
|
I-10-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
11
|
I-11-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
12
|
I-12-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
13
|
I-13-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
14
|
I-14-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
15
|
I-15-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
16
|
I-16-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
17
|
I-17-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
18
|
I-18-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
19
|
I-19-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
20
|
I-20-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
21
|
I-21-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
22
|
I-22-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
23
|
I-23-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
24
|
I-24-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
25
|
I-25-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
26
|
I-26-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
27
|
I-27-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
28
|
I-28-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
29
|
I-29-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
30
|
I-30-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
31
|
I-31-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
32
|
I-32-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
33
|
I-33-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
34
|
I-34-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
35
|
I-35-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
36
|
I-36-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
37
|
I-37-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
38
|
I-38-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
39
|
I-39-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
40
|
I-40-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
41
|
I-41-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
42
|
I-42-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
43
|
I-43-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
44
|
I-44-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
45
|
I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
I-1-A
through I-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
thereafter
|
I-1-A
through I-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest IO and any Distribution Date, a per annum
rate equal to the excess, if any, of (x) the weighted average of the
Uncertificated REMIC I Pass-Through Rates for the REMIC I Regular Interests
ending with the designation “A” for such Distribution Date, over (y) 2
multiplied by Swap LIBOR.
Unpaid
Realized Loss Amount:
With
respect to any Class A Certificates and as to any Distribution Date is the
excess of Applied Realized Loss Amounts with respect to such Class over the
sum
of all distributions in reduction of the Applied Realized Loss Amounts on all
previous Distribution Dates. Any amounts distributed to the Class A Certificates
in respect of any Unpaid Realized Loss Amount shall not be applied to reduce
the
Certificate Principal Balance of such Class.
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions hereunder. Voting Rights
shall
be allocated (i) 93% to the Class A, Class M and Class B Certificates, (ii)
3%
to the Class C Certificates until paid in full, (iii) 1% to each of the Class
R-1, Class R-2, Class R-3 Certificates and Class RX Certificates, with the
allocation among the Certificates (other than the Class C Certificates and
Residual Certificates) to be in proportion to the Certificate Principal Balance
of each Class relative to the Certificate Principal Balance of all other such
Classes. Voting Rights will be allocated among the Certificates of each such
Class in accordance with their respective Percentage Interests.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, and any successor thereto.
Xxxxx
Fargo Custodial Agreement:
The
custodial agreement, dated as of August 30, 2006, among the Depositor, EMC,
as
seller and as Master Servicer, the Trustee and Xxxxx Fargo, as a Custodian,
in
substantially the form of Exhibit J-2 hereto.
Section
1.02 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Current Interest for the Class A, Class
M,
Class B and Class C Certificates for any Distribution Date, the aggregate amount
of any Prepayment Interest Shortfalls (to the extent not covered by payments
by
the Master Servicer pursuant to Section 5.02) and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated first, to the Class C Interest based on, and to the extent
of, one month’s interest at the then applicable Pass-Through Rate on the
Uncertificated Notional Amount thereof, and to the Class R-3 Certificates based
on the amounts otherwise distributable thereto, and, thereafter, among the
Class
A, Class M and Class B Certificates, in each case on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rates on the respective Certificate Principal Balances
of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Master Servicer pursuant to Section 5.02) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, to the Class R-1 Certificates based on the amounts otherwise
distributable thereto, second, to REMIC I Regular Interests ending with the
designation “B”, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC I Regular Interest, and third, to REMIC
I
Regular Interests ending with the designation “A”, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC II Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls (to the extent not covered by payments by
the
Master Servicer pursuant to Section 5.02) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, to Uncertificated Accrued Interest payable to REMIC II Regular
Interest AA and REMIC II Regular Interest ZZ up to an aggregate amount equal
to
the REMIC II Interest Loss Allocation Amount, 98% and 2%, respectively, and
to
amounts otherwise distributable to the Class R-2 Certificates, and thereafter
among REMIC II Regular Interest AA, each REMIC II Regular Interest for which
a
Class A, Class M or Class B Certificate is the Corresponding Certificate and
REMIC II Regular Interest ZZ, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC II Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC II Regular Interest.
ARTICLE
II
CONVEYANCE
OF TRUST FUND
Section
2.01 Conveyance
of Trust Fund.
Pursuant
to the Mortgage Loan Purchase Agreement, each Seller sold, transferred,
assigned, set over and otherwise conveyed to the Depositor, without recourse,
all the right, title and interest of such Seller in and to the assets sold
by it
in the Trust Fund.
The
Seller has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans by the Depositor pursuant to the Mortgage Loan Purchase Agreement
and has agreed to take the actions specified herein.
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
use
and benefit of the Certificateholders, without recourse, all the right, title
and interest of the Depositor in and to the Trust Fund.
In
connection with such sale, the Depositor has delivered to, and deposited with,
the Trustee or the related Custodian, as its agent, the following documents
or
instruments with respect to each Mortgage Loan so assigned: (i) the original
Mortgage Note, including any riders thereto, endorsed without recourse (A)
in
blank or to the order of “LaSalle
Bank National Association, as Trustee for Certificateholders of Bear Xxxxxxx
Mortgage Funding Trust 2006-SL2, Mortgage-Backed Certificates, Series
2006-SL2,”
or
(B)
in the case of a loan registered on the MERS system, in blank, and in each
case
showing an unbroken chain of endorsements from the original payee thereof to
the
Person endorsing it to the Trustee, (ii) the original Mortgage and, if the
related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language
indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded
(or, for Mortgage Loans other than the EMC Flow Loans, if the original is not
available, a copy), with evidence of such recording indicated thereon (or if
clause (x) in the proviso below applies, shall be in recordable form), (iii)
unless the Mortgage Loan is a MOM Loan, the assignment (either an original
or a
copy, which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the Trustee of
the
Mortgage with respect to each Mortgage Loan in the name of “LaSalle Bank
National Association, as Trustee for Certificateholders of Bear Xxxxxxx Mortgage
Funding Trust 2006-SL2, Mortgage-Backed Certificates, Series 2006-SL2,” which
shall have been recorded (or if clause (x) in the proviso below applies, shall
be in recordable form), (iv) an original or a copy of all intervening
assignments of the Mortgage, if any, with evidence of recording thereon, (v)
the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance, if available, or a copy thereof,
or, in the event that such original title insurance policy is unavailable,
a
photocopy thereof, or in lieu thereof, a current lien search on the related
Mortgaged Property, and (vi) originals or copies of all available assumption,
modification or substitution agreements, if any; provided, however, that in
lieu
of the foregoing, the related Seller may deliver the following documents, under
the circumstances set forth below: (x) if any Mortgage (other than the Mortgages
related to the EMC Flow Loans), assignment thereof to the Trustee or intervening
assignments thereof have been delivered or are being delivered to recording
offices for recording and have not been returned in time to permit their
delivery as specified above, the Depositor may deliver a true copy thereof
with
a certification by such Seller or the title company issuing the commitment
for
title insurance, on the face of such copy, substantially as follows: “Certified
to be a true and correct copy of the original, which has been transmitted for
recording”; and (y) in lieu of the Mortgage Notes relating to the Mortgage Loans
identified in the list set forth in Exhibit I, the Depositor may deliver a
lost
note affidavit and indemnity and a copy of the original note, if available;
and
provided, further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-Off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver to the Trustee
and the related Custodian a certification of a Servicing Officer to such effect
and in such case shall deposit all amounts paid in respect of such Mortgage
Loans, in the Protected Account or in the Distribution Account on the Closing
Date. In the case of the documents referred to in clause (x) above, the
Depositor shall deliver such documents to the Trustee or the related Custodian
promptly after they are received.
The
Seller shall cause, at its expense, the Mortgage and intervening assignments,
if
any, and to the extent required in accordance with the foregoing, the assignment
of the Mortgage to the Trustee to be submitted for recording promptly after
the
Closing Date; provided that, the Seller need not cause to be recorded (a) any
assignment in any jurisdiction under the laws of which, as evidenced by an
Opinion of Counsel addressed to the Trustee delivered by the Seller to the
Trustee and the Rating Agencies, the recordation of such assignment is not
necessary to protect the Trustee’s interest in the related Mortgage Loan or (b)
if MERS is identified on the Mortgage or on a properly recorded assignment
of
the Mortgage as the mortgagee of record solely as nominee for the related Seller
and its successors and assigns. In the event that any Seller, the Depositor
or
the Master Servicer gives written notice to the Trustee that a court has
recharacterized the sale of the Mortgage Loans as a financing, the Seller shall
submit or cause to be submitted for recording as specified above each such
previously unrecorded assignment to be submitted for recording as specified
above at the expense of the Trust. In the event a Mortgage File is released
to
the Master Servicer as a result of such Person having completed a Request for
Release, the related Custodian shall, if not so completed, complete the
assignment of the related Mortgage in the manner specified in clause (iii)
above.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within 30 days after the Closing Date, the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Depositor
and
by the Depositor to the Trustee in accordance with this Agreement for the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files (a) the code in the field which identifies the specific Trustee
and (b) the code in the field “Pool Field” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Seller further
agrees that it will not, and will not permit the Master Servicer to, and the
Master Servicer agrees that it will not, alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement or the Mortgage Loan Purchase Agreement.
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee or the related Custodian on its behalf are and shall be held by or
on
behalf of the Seller or the Depositor, as the case may be, in trust for the
benefit of the Trustee on behalf of the Certificateholders. Any such original
document delivered to or held by the Depositor, shall be delivered promptly
to
the Custodian on the Trustee’s behalf.
Whenever
it is provided for in this Agreement that any document, evidence or information
relating to a Mortgage Loan to be included in a Mortgage File be delivered
or
supplied to the Trustee, such delivery or supply shall be made to the
appropriate Custodian pursuant to the related Custodial Agreement.
Section
2.02 Acceptance
of the Mortgage Loans.
(a) Based
on
the Initial Certification received by it from the related Custodian, the Trustee
acknowledges receipt of, subject to the further review and exceptions reported
by the related Custodian pursuant to the procedures described below, the
documents (or certified copies thereof) delivered to the Trustee or the related
Custodian on its behalf pursuant to Section 2.01 and declares that it holds
and
will continue to hold directly or through a related Custodian those documents
and any amendments, replacements or supplements thereto and all other assets
of
the Trust Fund delivered to it in trust for the use and benefit of all present
and future Holders of the Certificates. On the Closing Date, the Trustee or
the
related Custodian on its behalf will deliver an Initial Certification, each
in
the form of Exhibit One to the Custodial Agreement, confirming whether or not
it
has received the Mortgage File for each Mortgage Loan, but without review of
such Mortgage File, except to the extent necessary to confirm whether such
Mortgage File contains the original Mortgage Note or a lost note affidavit
and
indemnity in lieu thereof. No later than 90 days after the Closing Date, the
Trustee or the related Custodian on its behalf shall, for the benefit of the
Certificateholders, review each Mortgage File delivered to it and execute and
deliver to the Seller and the Master Servicer an Interim Certification,
substantially in the form of Exhibit Two to the Custodial Agreement. In
conducting such review, the Trustee or the related Custodian on its behalf
will
ascertain whether all required documents have been executed and received and
whether those documents relate, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans identified
in
Exhibit B to this Agreement, as supplemented (provided, however, that with
respect to those documents described in subclauses (iv) and (vi) of Section
2.01, such obligations shall extend only to documents actually delivered
pursuant to such subclauses). In performing any such review, the Trustee and
the
related Custodian may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness of any
signature thereon. If the Trustee or the related Custodian on its behalf finds
any document constituting part of the Mortgage File not to have been executed
or
received, or to be unrelated to the Mortgage Loans identified in Exhibit B
or to
appear to be defective on its face, the Trustee or the related Custodian on
its
behalf shall include such information in the exception report attached to the
Interim Certification. The
Seller
shall correct or cure any such defect or, if prior to the end of the second
anniversary of the Closing Date, the Seller may substitute for the related
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03 or shall deliver to the Trustee an Opinion of Counsel addressed to the
Trustee to the effect that such defect does not materially or adversely affect
the interests of the Certificateholders in such Mortgage Loan within 60 days
from the date of notice from the Trustee of the defect and if the Seller fails
to correct or cure the defect or deliver such opinion within such period, the
Seller will, subject to Section 2.03, within 90 days from the notification
of
the Trustee purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller
to
deliver the Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such documents
have been submitted for recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan
if
the Seller delivers such documents promptly upon receipt, but in no event later
than 360 days after the Closing Date.
(b) No
later
than 180 days after the Closing Date, the Trustee or the related Custodian
on
its behalf will review, for the benefit of the Certificateholders, the Mortgage
Files and will execute and deliver or cause to be executed and delivered to
the
Seller and the Master Servicer one or more Final Certifications, each
substantially in the form of Exhibit Three to the Custodial Agreement. In
conducting such review, the Trustee or the related Custodian on its behalf
will
ascertain whether each document required to be recorded has been returned from
the recording office with evidence of recording thereon and the Trustee or
the
related Custodian on its behalf has received either an original or a copy
thereof, as required in Section 2.01 (provided, however, that with respect
to
those documents described in subclauses (iv) and (vi) of Section 2.01, such
obligations shall extend only to documents actually delivered pursuant to such
subclauses). If the Trustee or the related Custodian on its behalf finds any
document with respect to a Mortgage Loan has not been received, or to be
unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B or to
appear defective on its face, the Trustee or the related Custodian on its behalf
shall note such defect in the exception report attached to the Final
Certification and shall promptly notify the Seller. The Seller shall correct
or
cure any such defect or, if prior to the end of the second anniversary of the
Closing Date, the Seller may substitute for the related Mortgage Loan a
Replacement Mortgage Loan, which substitution shall be accomplished in the
manner and subject to the conditions set forth in Section 2.03 or shall deliver
to the Trustee an Opinion of Counsel addressed to the Trustee to the effect
that
such defect does not materially or adversely affect the interests of
Certificateholders in such Mortgage Loan within 60 days from the date of notice
from the Trustee of the defect and if the Seller is unable within such period
to
correct or cure such defect, or to substitute the related Mortgage Loan with
a
Replacement Mortgage Loan or to deliver such opinion, the Seller shall, subject
to Section 2.03, within 90 days from the notification of the Trustee, purchase
such Mortgage Loan at the Purchase Price; provided, however, that if such defect
relates solely to the inability of the Seller to deliver the Mortgage,
assignment thereof to the Trustee or intervening assignments thereof with
evidence of recording thereon, because such documents have not been returned
by
the applicable jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan, if the Seller delivers such documents promptly upon receipt,
but
in no event later than 360 days after the Closing Date. Notwithstanding anything
to the contrary, the Trustee shall have no responsibility with respect to the
custody or review of Mortgage Files, all of which shall be performed by the
related Custodian pursuant to the related Custodial Agreement, and the Trustee
is hereby authorized and directed to enter into each such Custodial Agreement.
Performance by the Custodians of their obligations under the respective
Custodial Agreement shall satisfy all responsibilities for custody and review
of
Mortgage Files hereunder. The Trustee shall have no liability for the failure
of
the Custodians to perform their respective obligations under the related
Custodial Agreement.
(c) In
the
event that a Mortgage Loan is purchased by the Seller in accordance with
Sections 2.02(a) or (b) above or Section 2.03, the Seller shall remit the
applicable Purchase Price to the Master Servicer for deposit in the Protected
Account and shall provide written notice to the Trustee detailing the components
of the Purchase Price, signed by a Servicing Officer. Upon deposit of the
Purchase Price in the Protected Account and upon receipt of a Request for
Release with respect to such Mortgage Loan, the Trustee or the related Custodian
will release to the Seller the related Mortgage File and the Trustee shall
execute and deliver all instruments of transfer or assignment, without recourse,
representation or warranty furnished to it by the related Seller, as are
necessary to vest in the title to and rights under the Mortgage Loan. Such
purchase shall be deemed to have occurred on the date on which the deposit
into
the Protected Account was made. The Trustee shall promptly notify the Rating
Agencies of such repurchase. The obligation of the Seller to cure, repurchase
or
substitute for any Mortgage Loan as to which a defect in a constituent document
exists shall be the sole remedies respecting such defect available to the
Certificateholders or to the Trustee on their behalf.
(d) The
Seller shall deliver to the Trustee or the related Custodian on its behalf,
and
Trustee agrees to accept the Mortgage Note and other documents constituting
the
Mortgage File with respect to any Replacement Mortgage Loan, which the Trustee
or the related Custodian will review as provided in Sections 2.02(a) and
2.02(b), provided, that the Closing Date referred to therein shall instead
be
the date of delivery of the Mortgage File with respect to each Replacement
Mortgage Loan.
Section
2.03 Representations,
Warranties and Covenants of the Master Servicer and The Seller.
(a) The
Master Servicer hereby represents and warrants to the Depositor and the Trustee
as follows, as of the Closing Date:
(i) It
is
duly organized and is validly existing and in good standing under the laws
of
the State of Delaware and is duly authorized and qualified to transact any
and
all business contemplated by this Agreement to be conducted by it in any state
in which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to service the Mortgage Loans
in accordance with the terms of the Mortgage Loan Purchase Agreement and to
perform any of its other obligations under this Agreement in accordance with
the
terms hereof or thereof.
(ii) It
has
the full corporate power and authority to service each Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on its part the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery hereof by the other parties hereto or thereto, as applicable,
constitutes its legal, valid and binding obligation, enforceable against it
in
accordance with its terms, except that (a) the enforceability hereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(iii) The
execution and delivery of this Agreement, the servicing of the Mortgage Loans
by
it under this Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance with the
terms hereof and thereof are in its ordinary course of business and will not
(A)
result in a breach of any term or provision of its charter or by-laws or (B)
conflict with, result in a breach, violation or acceleration of, or result
in a
default under, the terms of any other material agreement or instrument to which
it is a party or by which it may be bound, or (C) constitute a violation of
any
statute, order or regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it; and
it
is not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its ability
to perform or meet any of its obligations under this Agreement.
(iv) It
is an
approved servicer of conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx
Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No
litigation is pending or, to the best of its knowledge, threatened, against
it
that would materially and adversely affect (a) the execution, delivery or
enforceability of this Agreement (b) its ability to service the EMC Mortgage
Loans, (c) to perform any of its other obligations under this Agreement in
accordance with the terms hereof, (d) its business operations, financial
conditions, or properties or assets owned by it, or (e) its ability to carry
on
its business as now conducted.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for its execution, delivery and performance of, or compliance
with, this Agreement or the consummation of the transactions contemplated hereby
or thereby, or if any such consent, approval, authorization or order is
required, it has obtained the same.
(vii) The
servicing practices used by the Master Servicer in respect of each Mortgage
Loan
have been, and will continue to be, compliant in all material respects with
applicable laws and regulations.
(viii) As
of the
Closing Date and except as has been otherwise disclosed to the Depositor, or
disclosed in any public filing: (1) no default or servicing related performance
trigger has occurred as to any other Pass-Through Transfer due to any act or
failure to act of the Master Servicer; (2) no material noncompliance with
applicable servicing criteria as to any other Pass-Through Transfer has
occurred, been disclosed or reported by the Master Servicer; (3) the Master
Servicer has not been terminated as servicer in a residential mortgage loan
Pass-Through Transfer, either due to a servicing default or to application
of a
servicing performance test or trigger; (4) no material changes to the Master
Servicer’s servicing policies and procedures for similar loans have occurred in
the preceding three years outside of the normal changes warranted by regulatory
and product type changes in the portfolio; (5) there are no aspects of the
Master Servicer’s financial condition that could have a material adverse impact
on the performance by the Master Servicer of its obligations hereunder; (6)
there are no legal proceedings pending, or known to be contemplated by
governmental authorities, against the Master Servicer that could be material
to
investors in the securities issued in such Pass-Through Transfer; and (7) there
are no affiliations, relationships or transactions relating to the Master
Servicer of a type that are described under Item 1119 of Regulation
AB.
(ix) If
so
requested by the Depositor on any date, the Master Servicer shall, within five
Business Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in clause (a)(vii) of this Section
or,
if any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
(x) As
a
condition to the succession to the Master Servicer or any subservicer as
servicer or subservicer under this Agreement by any Person (i) into which the
Master Servicer or such subservicer may be merged or consolidated, or (ii)
which
may be appointed as a successor to the Master Servicer or any subservicer,
the
Master Servicer shall provide to the Depositor, at least 15 calendar days prior
to the effective date of such succession or appointment, (x) written notice
to
the Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(b) The
Seller hereby represents and warrants to the Depositor and the Trustee as
follows, as of the Closing Date:
(i) The
Seller is duly organized as a Delaware corporation and is validly existing
and
in good standing under the laws of the State of Delaware and is duly authorized
and qualified to transact any and all business contemplated by this Agreement
to
be conducted by the Seller in any state in which a Mortgaged Property is located
or is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to enforce each Mortgage
Loan, to sell the Mortgage Loans in accordance with the terms of the Mortgage
Loan Purchase Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) The
Seller has the full corporate power and authority to sell each Mortgage Loan,
and to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary corporate action on the part of the Seller the execution, delivery
and
performance of this Agreement, assuming the due authorization, execution and
delivery hereof by the other parties hereto or thereto, as applicable,
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(iii) The
execution and delivery of this Agreement by the Seller, the sale of the Mortgage
Loans by the Seller under the Mortgage Loan Purchase Agreement, the consummation
of any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms hereof and thereof are in the
ordinary course of business of the Seller and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the Seller or
(B)
conflict with, result in a breach, violation or acceleration of, or result
in a
default under, the terms of any other material agreement or instrument to which
the Seller is a party or by which it may be bound, or (C) constitute a violation
of any statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Seller; and the Seller is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Seller’s ability to perform or meet any of
its obligations under this Agreement.
(iv) The
Seller is an approved seller of conventional mortgage loans for Xxxxxx Mae
or
Xxxxxxx Mac and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(v) No
litigation is pending or, to the best of the Seller’s knowledge, threatened,
against the Seller that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Seller to
sell the Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms hereof or thereof.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Seller has obtained the
same.
(vii) With
respect to each Mortgage Loan as of the Closing Date (or such other date as
may
be specified in Section 7 of the Mortgage Loan Purchase Agreement), the Seller
hereby remakes and restates each of the representations and warranties set
forth
in Section 7 of the Mortgage Loan Purchase Agreement to the Depositor and the
Trustee to the same extent as if fully set forth herein.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in the Mortgage Loan Purchase Agreement with respect to
the
Mortgage Loans that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach
shall
give prompt written notice thereof to the other parties. The Seller hereby
covenants, with respect to the representations and warranties set forth in
the
Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, that within
90 days of the discovery of a breach of any representation or warranty set
forth
therein that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, (i) if such 90 day period
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and substitute in
its place a Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner
set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery
to
the Trustee of an Opinion of Counsel if required by Section 2.05 hereof and
any
such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release. The Trustee shall
give prompt written notice to the parties hereto of the Seller’s failure to cure
such breach as set forth in the preceding sentence. The Seller shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing the
remedies for such breach. To enable the Master Servicer to amend the Mortgage
Loan Schedule, the Seller shall, unless it cures such breach in a timely fashion
pursuant to this Section 2.03, promptly notify the Master Servicer whether
it
intends either to repurchase, or to substitute for, the Mortgage Loan affected
by such breach. With respect to the representations and warranties with respect
to the Mortgage Loans that are made to the best of the Seller’s knowledge, if it
is discovered by any of the Depositor, the Master Servicer, the Seller, the
Trustee or the Custodian that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan, notwithstanding the Seller’s lack of knowledge with
respect to the substance of such representation or warranty, the Seller shall
nevertheless be required to cure, substitute for or repurchase the affected
Mortgage Loan in accordance with the foregoing.
With
respect to any Replacement Mortgage Loan or Loans, the Seller (pursuant to
the
Mortgage Loan Purchase Agreement) shall deliver to the Trustee or the Custodian
on its behalf for the benefit of the Certificateholders such documents and
agreements as are required by Section 2.01. No substitution will be made in
any
calendar month after the Determination Date for such month. Notwithstanding
the
foregoing, such substitution must be done within two years of the Closing Date.
Scheduled Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are to be
distributed shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, distributions to Certificateholders
will
include the Scheduled Payment due on any Deleted Mortgage Loan for the related
Due Period and thereafter the Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The Master Servicer shall
amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee and the Custodian. Upon such
substitution, the Replacement Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Seller shall be deemed to
have
made with respect to such Replacement Mortgage Loan or Loans, as of the date
of
substitution, the representations and warranties set forth in Section 7 or
Section 8 of the Mortgage Loan Purchase Agreement with respect to such Mortgage
Loan. Upon any such substitution and the deposit into the Protected Account
of
the amount required to be deposited therein in connection with such substitution
as described in the following paragraph and receipt by the Trustee of a Request
for Release for such Mortgage Loan, the Trustee or the Custodian shall release
to the Seller the Mortgage File relating to such Deleted Mortgage Loan and
held
for the benefit of the Certificateholders and the Trustee shall execute and
deliver at the Seller’s direction such instruments of transfer or assignment as
have been prepared by the Seller in each case without recourse, representation
or warranty as shall be necessary to vest in the Seller or its respective
designee, title to the Trustee’s interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.03.
For
any
month in which the Seller substitutes one or more Replacement Mortgage Loans
for
a Deleted Mortgage Loan, the Master Servicer will determine the amount (if
any)
by which the aggregate principal balance of all the Replacement Mortgage Loans
as of the date of substitution is less than the Stated Principal Balance (after
application of the principal portion of the Scheduled Payment due in the month
of substitution) of such Deleted Mortgage Loan. An amount equal to the aggregate
of such deficiencies, described in the preceding sentence for any Distribution
Date (such amount, the “Substitution Adjustment Amount”) shall be deposited into
the Protected Account, by the Seller delivering such Replacement Mortgage Loan
on the Determination Date for the Distribution Date relating to the Prepayment
Period during which the related Mortgage Loan became required to be purchased
or
replaced hereunder.
In
the
event that the Seller shall have repurchased a Mortgage Loan, the Purchase
Price
therefor shall be deposited into the Protected Account, on the Determination
Date for the Distribution Date in the month following the month during which
the
Seller became obligated to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of an Opinion of Counsel if
required by Section 2.05 and the receipt of a Request for Release, the Trustee
or the Custodian shall release the related Mortgage File held for the benefit
of
the Certificateholders to the Seller and the Trustee shall execute and deliver
at such Person’s direction the related instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary
to
transfer title from the Trustee for the benefit of the Certificateholders and
transfer the Trustee’s interest to the Seller to any Mortgage Loan purchased
pursuant to this Section 2.03. It is understood and agreed that the obligation
under this Agreement of the Seller to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedies against the Seller respecting such breach available to the
Certificateholders, the Depositor or the Trustee.
(d) The
representations and warranties set forth in this Section 2.03 hereof shall
survive delivery of the respective Mortgage Loans and Mortgage Files to the
Trustee or the Custodian for the benefit of the Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Master Servicer and the Trustee
as follows, as of the date hereof and as of the Closing Date:
(i) The
Depositor is duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware and has full
power and authority necessary to own or hold its properties and to conduct
its
business as now conducted by it and to enter into and perform its obligations
under this Agreement.
(ii) The
Depositor has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by, this Agreement
and has duly authorized, by all necessary corporate action on its part, the
execution, delivery and performance of this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Depositor, enforceable
against the Depositor in accordance with its terms, subject, as to
enforceability, to (i) bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors’ rights generally and (ii) general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(iii) The
execution and delivery of this Agreement by the Depositor, the consummation
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof and thereof are in the ordinary course of
business of the Depositor and will not (A) result in a material breach of any
term or provision of the certificate of formation or limited liability company
agreement of the Depositor or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under,
the
terms of any other material agreement or instrument to which the Depositor
is a
party or by which it may be bound or (C) constitute a material violation of
any
statute, order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Depositor; and the Depositor is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation
of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Depositor’s ability to perform or meet any
of its obligations under this Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with the terms hereof
or thereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Depositor
of, or compliance by the Depositor with this Agreement or the consummation
of
the transactions contemplated hereby or thereby, or if any such consent,
approval, authorization or order is required, the Depositor has obtained the
same.
(vi) The
Depositor has filed all reports required to be filed by Section 13 or 15(d)
of
the Exchange Act during the preceding 12 months (or for such shorter period
that
the Depositor was required to file such reports) and it has been subject to
such
filing requirement for the past 90 days.
The
Depositor hereby represents and warrants to the Trustee as of the Closing Date,
following the transfer of the Mortgage Loans to it by the Sellers, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes were subject
to no offsets, claims, defenses or counterclaims.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee or
the
related Custodian for the benefit of the Certificateholders. Upon discovery
by
the Depositor or the Trustee of a breach of such representations and warranties,
the party discovering such breach shall give prompt written notice to the others
and to each Rating Agency.
Section
2.05 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not reasonably foreseeable, no
repurchase or substitution pursuant to Sections 2.02 or 2.03 shall be made
unless the Seller delivers to the Trustee an Opinion of Counsel, addressed
to
the Trustee, to the effect that such repurchase or substitution would not (i)
result in the imposition of the tax on “prohibited transactions” of REMIC I,
REMIC II, REMIC III, REMIC IV or REMIC V or contributions after the Closing
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause any of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to fail
to qualify as a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier of (a)
the
occurrence of a default or a default becoming reasonably foreseeable with
respect to such Mortgage Loan and (b) receipt by the Trustee of an Opinion
of
Counsel addressed to the Trustee to the effect that such repurchase or
substitution, as applicable, will not result in the events described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon
discovery by the Depositor, the Seller or the Master Servicer that any Mortgage
Loan does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall promptly (and
in
any event within 5 Business Days of discovery) give written notice thereof
to
the other parties and the Trustee. In connection therewith, the Trustee shall
require the Seller at it’s option, to either (i) substitute, if the conditions
in Section 2.03 with respect to substitutions are satisfied, a Replacement
Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase the affected
Mortgage Loan within 90 days of such discovery in the same manner as it would
a
Mortgage Loan for a breach of representation or warranty in accordance with
Section 2.03. The Trustee shall reconvey to the Seller the Mortgage Loan to
be
released pursuant hereto (and the Custodian shall deliver the related Mortgage
File) in the same manner, and on the same terms and conditions, as it would
a
Mortgage Loan repurchased for breach of a representation or warranty in
accordance with Section 2.03.
Section
2.06 Countersignature
and Delivery of Certificates.
(a) The
Trustee acknowledges the sale, transfer and assignment to it of the Trust Fund
and, concurrently with such transfer and assignment, has executed, countersigned
and delivered, to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing 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 and to
perform the duties set forth in this Agreement in accordance with its
terms.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests and the other assets of REMIC II for the benefit of the
holders of the REMIC II Regular Interests and the Class R-2 Certificates. The
Trustee acknowledges receipt of the REMIC I Regular Interests (which are
uncertificated) and the other assets of REMIC II and declares that it holds
and
will hold the same in trust for the exclusive use and benefit of the holders
of
the REMIC II Regular Interests and the Class R-2 Certificates.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests and the other assets of REMIC III for the benefit of the
holders of the Regular Certificates (other than the Class C Certificates),
the
Class C Interest, the Class IO Interest and the Class R-3 Certificates. The
Trustee acknowledges receipt of the REMIC II Regular Interests (which are
uncertificated) and the other assets of REMIC III and declares that it holds
and
will hold the same in trust for the exclusive use and benefit of the holders
of
the Regular Certificates (other than the Class C Certificates), the Class C
Interest, the Class IO Interest and the Class R-3 Certificates.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest for the benefit of the Holders of the Class C Certificates and Class
RX Certificates (in respect of the Class R-4 Interest). The Trustee acknowledges
receipt of the Class C Interest (which is uncertificated) and declares that
it
holds and will hold the same in trust for the exclusive use and benefit of
the
Holders of the Class C Certificates and Class RX Certificates (in respect of
the
Class R-4 Interest).
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest for the benefit of the holders of the REMIC V Regular Interest
IO
and Class RX Certificates (in respect of the Class R-5 Interest). The Trustee
acknowledges receipt of the Class IO Interest (which is uncertificated) and
declares that it holds and will hold the same in trust for the exclusive use
and
benefit of the holders of the REMIC V Regular Interest IO and Class RX
Certificates (in respect of the Class R-5 Interest).
Section
2.07 Purposes
and Powers of the Trust.
The
purpose of the common law trust, created hereunder (the “Trust”), is to engage
in the following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom for the benefit of the Certificateholders;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage Loans and
the other assets of the Trust Fund;
(c) to
make
distributions on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Agreement while any Certificate
is outstanding.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
Section
3.01 The
Master Servicer to act as Master Servicer.
The
Master Servicer shall service and administer the Mortgage Loans in accordance
with customary and usual standards of practice of prudent mortgage loan
servicers in the respective states in which the related Mortgaged Properties
are
located. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
subservicers as provided in Section 3.03, to do or cause to be done any and
all
things that it may deem necessary or desirable in connection with such servicing
and administration, including but not limited to, the power and authority,
subject to the terms hereof (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any related Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided herein), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds or Subsequent Recoveries, and (iv) subject to Section
3.09, to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan; provided that the Master Servicer
shall take no action that is inconsistent with or prejudices the interests
of
the Trust Fund or the Certificateholders in any Mortgage Loan or the rights
and
interests of the Depositor or the Trustee under this Agreement.
Without
limiting the generality of the foregoing, the Master Servicer, in its own name
or in the name of the Trust, the Depositor or the Trustee, is hereby authorized
and empowered by the Trust, the Depositor and the Trustee, when the Master
Servicer believes it appropriate in its reasonable judgment, to execute and
deliver, on behalf of the Trustee, the Depositor, the Certificateholders or
any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with respect
to the Mortgage Loans, and with respect to the Mortgaged Properties held for
the
benefit of the Certificateholders. The Master Servicer shall prepare and deliver
to the Depositor and/or the Trustee such documents requiring execution and
delivery by any or all of them as are necessary or appropriate to enable the
Master Servicer to service and administer the Mortgage Loans. Upon receipt
of
such documents, the Depositor and/or the Trustee shall execute such documents
and deliver them to the Master Servicer.
In
accordance with the standards of the first paragraph of this Section 3.01,
the
Master Servicer shall advance or cause to be advanced funds as necessary for
the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 4.03, and further
as
provided in Section 4.02. All costs incurred by the Master Servicer, if any,
in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balance under the Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
Section
3.02 Due-on-Sale
Clauses; Assumption Agreements.
(a) Except
as
otherwise provided in this Section 3.02, when any property subject to a Mortgage
has been or is about to be conveyed by the Mortgagor, the Master Servicer shall
to the extent that it has knowledge of such conveyance, enforce any due-on-sale
clause contained in any Mortgage Note or Mortgage, to the extent permitted
under
applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Master Servicer is not
required to exercise such rights with respect to a Mortgage Loan if the Person
to whom the related Mortgaged Property has been conveyed or is proposed to
be
conveyed satisfies the terms and conditions contained in the Mortgage Note
and
Mortgage related thereto and the consent of the mortgagee under such Mortgage
Note or Mortgage is not otherwise so required under such Mortgage Note or
Mortgage as a condition to such transfer. In the event that the Master Servicer
is prohibited by law from enforcing any such due-on-sale clause, or if coverage
under any Required Insurance Policy would be adversely affected, or if
nonenforcement is otherwise permitted hereunder, the Master Servicer is
authorized, subject to Section 3.02(b), to take or enter into an assumption
and
modification agreement from or with the person to whom such property has been
or
is about to be conveyed, pursuant to which such person becomes liable under
the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered before the Master Servicer enters such agreement) by
the
applicable Required Insurance Policies. The Master Servicer, subject to Section
3.02(b), is also authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of liability agreement
with such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Master Servicer shall
not
be deemed to be in default under this Section 3.02(a) by reason of any transfer
or assumption that the Master Servicer reasonably believes it is restricted
by
law from preventing.
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.02(a), in any case in which a Mortgaged Property has
been
conveyed to a Person by a Mortgagor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the related Mortgage Loan, the Master Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature
and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the Mortgage Note
(including, but not limited to, the Mortgage Rate, the amount of the Scheduled
Payment and any other term affecting the amount or timing of payment on the
Mortgage Loan) may be changed. In addition, the substitute Mortgagor and the
Mortgaged Property must be acceptable to the Master Servicer in accordance
with
its servicing standards as then in effect. The Master Servicer shall notify
the
Trustee that any such substitution or assumption agreement has been completed
by
forwarding to the Trustee the original of such substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting
a
part thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the Master
Servicer as additional servicing compensation.
Section
3.03 Subservicers.
The
Master Servicer shall perform all of its servicing responsibilities hereunder
or
may cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Master Servicer of a subservicer shall not release
the Master Servicer from any of its obligations hereunder and the Master
Servicer shall remain responsible hereunder for all acts and omissions of each
subservicer as fully as if such acts and omissions were those of the Master
Servicer. The Master Servicer shall pay all fees of each subservicer from its
own funds, and a subservicer’s fee shall not exceed the Servicing Fee payable to
the Master Servicer hereunder.
At
the
cost and expense of the Master Servicer, without any right of reimbursement
from
its Protected Account, the Master Servicer shall be entitled to terminate the
rights and responsibilities of a subservicer and arrange for any servicing
responsibilities to be performed by a successor subservicer; provided, however,
that nothing contained herein shall be deemed to prevent or prohibit the Master
Servicer, at the Master Servicer’s option, from electing to service the related
Mortgage Loans itself. In the event that the Master Servicer’s responsibilities
and duties under this Agreement are terminated pursuant to Section 8.01, the
Master Servicer shall at its own cost and expense terminate the rights and
responsibilities of each subservicer effective as of the date of termination
of
the Master Servicer. The Master Servicer shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities of
each subservicer from the Master Servicer’s own funds without reimbursement from
the Trust Fund.
Notwithstanding
the foregoing, the Master Servicer shall not be relieved of its obligations
hereunder and shall be obligated to the same extent and under the same terms
and
conditions as if it alone were servicing and administering the Mortgage Loans.
The Master Servicer shall be entitled to enter into an agreement with a
subservicer for indemnification of the Master Servicer by the subservicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement and any other transactions or services relating to the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and the Master Servicer alone, and the Trustee shall not have any
obligations, duties or liabilities with respect to such subservicer including
any obligation, duty or liability of the Trustee to pay such subservicer’s fees
and expenses. Each subservicing agreement shall provide that such agreement
may
be assumed or terminated without cause or penalty by the Trustee or other
Successor Master Servicer in the event the Master Servicer is terminated in
accordance with this Agreement. For purposes of remittances to the Trustee
pursuant to this Agreement, the Master Servicer shall be deemed to have received
a payment on a Mortgage Loan when a subservicer has received such
payment.
Section
3.04 Documents,
Records and Funds in Possession of the Master Servicer To Be Held for
Trustee.
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee or the related Custodian on behalf of the Trustee as required by
this Agreement all documents and instruments in respect of a Mortgage Loan
coming into the possession of the Master Servicer from time to time and shall
account fully to the Trustee for any funds received by the Master Servicer
or
that otherwise are collected by the Master Servicer as Liquidation Proceeds,
Insurance Proceeds or Subsequent Recoveries in respect of any such Mortgage
Loan. All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds
or
Subsequent Recoveries, including but not limited to, any funds on deposit in
the
Protected Account, shall be held by the Master Servicer for and on behalf of
the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Master Servicer
also
agrees that it shall not create, incur or subject any Mortgage File or any
funds
that are deposited in the Protected Account or in any Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of set off against any Mortgage File
or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Master Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
All
funds
collected or held by, or under the control of, the Master Servicer, in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, shall be held
by
the Master Servicer for and on behalf of the Trustee and the Certificateholders
and shall be and remain the sole and exclusive property of the Trustee;
provided, however, that the Master Servicer shall be entitled to setoff against,
and deduct from, any such funds any amounts that are properly due and payable
to
the Master Servicer under this Agreement.
Section
3.05 Maintenance
of Hazard Insurance.
The
Master Servicer shall cause to be maintained, for each Mortgage Loan, hazard
insurance on buildings upon, or comprising part of, the Mortgaged Property
against loss by fire, hazards of extended coverage and such other hazards as
are
customary in the area where the related Mortgaged Property is located with
an
insurer which is licensed to do business in the state where the related
Mortgaged Property is located. Each such policy of standard hazard insurance
shall contain, or have an accompanying endorsement that contains, a standard
mortgagee clause. The Master Servicer shall also cause flood insurance to be
maintained on property acquired upon foreclosure or deed in lieu of foreclosure
of any Mortgage Loan, to the extent described below. Pursuant to Section 4.01,
any amounts collected by the Master Servicer under any such policies (other
than
the amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
accordance with the Master Servicer’s normal servicing procedures) shall be
deposited in the Protected Account. Any cost incurred by the Master Servicer
in
maintaining any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Master Servicer out of late payments by the related Mortgagor or out
of
Liquidation Proceeds to the extent permitted by Section 4.02. It is understood
and agreed that no earthquake or other additional insurance is to be required
of
any Mortgagor or maintained on property acquired in respect of a Mortgage other
than pursuant to such applicable laws and regulations as shall at any time
be in
force and as shall require such additional insurance. If the Mortgaged Property
is located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the least of (i) the Stated Principal
Balance of the related Mortgage Loan, (ii) minimum amount required to compensate
for damage or loss on a replacement cost basis or (iii) the maximum amount
of
such insurance available for the related Mortgaged Property under the Flood
Disaster Protection Act of 1973, as amended.
In
the
event that the Master Servicer shall obtain and maintain a blanket policy
insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 3.05, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property
a
policy complying with the first sentence of this Section 3.05, and there shall
have been a loss that would have been covered by such policy, deposit in the
Protected Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Such deposit shall be from the Master
Servicer’s own funds without reimbursement therefor. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Master
Servicer agrees to present, on behalf of itself, the Depositor and the Trustee
for the benefit of the Certificateholders claims under any such blanket
policy.
Section
3.06 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies and take such actions
(including the negotiation, settlement, compromise or enforcement of the
insured’s claim) as shall be necessary to realize recovery under such Insurance
Policies. Any proceeds disbursed to the Master Servicer in respect of such
Insurance Policies shall be promptly deposited in the Protected Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to
the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section
3.07 Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take any action that would result in noncoverage
under
any applicable Primary Mortgage Insurance Policy of any loss which, but for
the
actions of the Master Servicer would have been covered thereunder. The Master
Servicer shall use its best efforts to keep in force and effect (to the extent
that the Mortgage Loan requires the Mortgagor to maintain such insurance),
Primary Mortgage Insurance applicable to each Mortgage Loan. The Master Servicer
shall not cancel or refuse to renew any such Primary Mortgage Insurance Policy
that is in effect at the date of the initial issuance of the Mortgage Note
and
is required to be kept in force hereunder.
(b) The
Master Servicer agrees to present on behalf of the Trustee, the
Certificateholders’ claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by the Master Servicer under any Primary Mortgage Insurance Policies
shall be deposited in the Protected Account, subject to withdrawal pursuant
to
Section 4.02 hereof.
Section
3.08 Fidelity
Bond, Errors and Omissions Insurance.
The
Master Servicer shall maintain, at its own expense, a blanket fidelity bond
and
an errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting in any capacity
with regard to the Mortgage Loans and who handle funds, money, documents and
papers relating to the Mortgage Loans. The fidelity bond and errors and
omissions insurance shall be in the form of the Mortgage Banker’s Blanket Bond
and shall protect and insure the Master Servicer against losses, including
forgery, theft, embezzlement, fraud, errors and omissions and negligent acts
of
such persons. Such fidelity bond shall also protect and insure the Master
Servicer against losses in connection with the failure to maintain any insurance
policies required pursuant to this Agreement and the release or satisfaction
of
a Mortgage Loan which is not in accordance with Accepted Servicing Practices.
No
provision of this Section 3.08 requiring the fidelity bond and errors and
omissions insurance shall diminish or relieve the Master Servicer from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by Accepted Servicing Practices. The Master
Servicer shall deliver to the Trustee a certificate from the surety and the
insurer as to the existence of the fidelity bond and errors and omissions
insurance policy and shall obtain a statement from the surety and the insurer
that such fidelity bond or insurance policy shall in no event be terminated
or
materially modified without thirty days prior written notice to the Trustee.
The
Master Servicer shall notify the Trustee within five business days of receipt
of
notice that such fidelity bond or insurance policy will be, or has been,
materially modified or terminated. The Trustee for the benefit of the
Certificateholders must be named as loss payees on the fidelity bond and as
additional insured on the errors and omissions policy.
Section
3.09 Realization
Upon Defaulted Mortgage Loans; Determination of Excess Liquidation Proceeds
and
Realized Losses; Repurchases of Certain Mortgage Loans.
(a) The
Master Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, the Master Servicer shall follow
such
practices and procedures as it shall deem necessary or advisable and as shall
be
normal and usual in its general mortgage servicing activities and the
requirements of the insurer under any Required Insurance Policy; provided that
the Master Servicer shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration of any property unless it shall
determine (i) that such restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself
of
such expenses and (ii) that such expenses will be recoverable to it through
Insurance Proceeds, Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Protected Account pursuant to
Section 4.02). If the Master Servicer reasonably believes that Liquidation
Proceeds with respect to any such Mortgage Loan would not be increased as a
result of such foreclosure or other action, such Mortgage Loan will be
charged-off and will become a Liquidated Loan. The Master Servicer will give
notice of any such charge-off to the Trustee. The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided that such costs and expenses shall be Servicing Advances
and that it shall be entitled to reimbursement thereof from the proceeds of
liquidation of the related Mortgaged Property, as contemplated in Section 4.02.
If the Master Servicer has knowledge that a Mortgaged Property that the Master
Servicer is contemplating acquiring in foreclosure or by deed- in-lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Master Servicer, the Master Servicer
will,
prior to acquiring the Mortgaged Property, consider such risks and only take
action in accordance with its established environmental review
procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders (or the
Trustee’s nominee on behalf of the Certificateholders). The Trustee’s name shall
be placed on the title to such REO Property solely as the Trustee hereunder
and
not in its individual capacity. The Master Servicer shall ensure that the title
to such REO Property references this Agreement and the Trustee’s capacity
hereunder. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall either itself or through an agent selected by the Master Servicer
protect and conserve such REO Property in the same manner and to such extent
as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Master Servicer
deems to be in the best interest of the Master Servicer and the
Certificateholders for the period prior to the sale of such REO Property. The
Master Servicer shall prepare for and deliver to the Trustee a statement with
respect to each REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the management
and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions.
The
net monthly rental income, if any, from such REO Property shall be deposited
in
the Protected Account no later than the close of business on each Determination
Date. The Master Servicer shall perform the tax reporting and withholding
related to foreclosures, abandonments and cancellation of indebtedness income
as
specified by Sections 1445, 6050J and 6050P of the Code by preparing and filing
such tax and information returns, as may be required.
In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or reasonably foreseeable default on
a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to three years after its acquisition by the Trust Fund or, at the expense
of the Trust Fund, request more than 60 days prior to the day on which such
three-year period would otherwise expire, an extension of the three-year grace
period unless the Trustee shall have been supplied with an Opinion of Counsel
addressed to the Trustee (such opinion not to be an expense of the Trustee)
to
the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such three-year period will not result in the imposition of taxes
on “prohibited transactions” of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC
V as defined in Section 860F of the Code or cause any of REMIC I, REMIC II,
REMIC III, REMIC IV or REMIC V to fail to qualify as a REMIC at any time that
any Certificates are outstanding, in which case the Trust Fund may continue
to
hold such Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel). Notwithstanding any other provision of this Agreement,
no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or
on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code or (ii) subject any of
REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Master
Servicer has agreed to indemnify and hold harmless the Trust Fund with respect
to the imposition of any such taxes.
The
decision of the Master Servicer to foreclose on a defaulted Mortgage Loan shall
be subject to a determination by the Master Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Mortgaged Properties acquired
through foreclosure or other judicial proceeding, net of reimbursement to the
Master Servicer for expenses incurred (including any property or other taxes)
in
connection with such management and net of unreimbursed Servicing Fees,
Advances, Servicing Advances and any management fee paid or to be paid with
respect to the management of such Mortgaged Property, shall be applied to the
payment of principal of, and interest on, the related defaulted Mortgage Loans
(with interest accruing as though such Mortgage Loans were still current) and
all such income shall be deemed, for all purposes in the Agreement, to be
payments on account of principal and interest on the related Mortgage Notes
and
shall be deposited into the Protected Account. To the extent the income received
during a Prepayment Period is in excess of the amount attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the related
Mortgage Loan, such excess shall be considered to be a partial Principal
Prepayment for all purposes hereof.
The
Liquidation Proceeds from any liquidation of a Mortgage Loan, net of any payment
to the Master Servicer as provided above, shall be deposited in the Protected
Account upon
receipt and made available on
the
next succeeding Determination Date following receipt thereof for distribution
on
the related Distribution Date, except that any Excess Liquidation Proceeds
shall
be retained by the Master Servicer as additional servicing
compensation.
The
proceeds of any Liquidated Loan, as well as any recovery resulting from a
partial collection of Liquidation Proceeds or any income from an REO Property,
will be applied in the following order of priority: first, to reimburse the
Master Servicer for any related unreimbursed Servicing Advances and Servicing
Fees, pursuant to Section 4.02 or this Section 3.09; second, to reimburse the
Master Servicer for any unreimbursed Advances, pursuant to Section 4.02 or
this
Section 3.09; third, to accrued and unpaid interest (to the extent no Advance
has been made for such amount) on the Mortgage Loan or related REO Property,
at
the Net Mortgage Rate to the first day of the month in which such amounts are
required to be distributed; and fourth, as a recovery of principal of the
Mortgage Loan.
(b) On
each
Determination Date, the Master Servicer shall determine the respective aggregate
amounts of Excess Liquidation Proceeds and Realized Losses, if any, for the
related Prepayment Period.
(c) The
Master Servicer has no intent to foreclose on any Mortgage Loan based on the
delinquency characteristics as of the Closing Date; provided, that the foregoing
does not prevent the Master Servicer from initiating foreclosure proceedings
on
any date hereafter if the facts and circumstances of such Mortgage Loans
including delinquency characteristics in the Master Servicer’s discretion so
warrant such action.
Section
3.10 Servicing
Compensation.
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Protected Account out of each payment of interest
on a Mortgage Loan included in the Trust Fund an amount equal to the Servicing
Fee.
Additional
servicing compensation in the form of any Excess Liquidation Proceeds,
assumption fees, late payment charges, all Prepayment Interest Excess on any
Mortgage Loan, other ancillary income, all income and gain net of any losses
realized from Permitted Investments with respect to funds in or credited to
the
Protected Account shall be retained by the Master Servicer to the extent not
required to be deposited in the Protected Account pursuant to Section 4.02.
The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including payment of any
premiums for hazard insurance, as required by Section 3.05 and maintenance
of
the other forms of insurance coverage required by Section 3.07) and shall not
be
entitled to reimbursement therefor except as specifically provided in Section
4.02.
Section
3.11 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the related Certificateholders. The
Master Servicer shall sell any REO Property as expeditiously as possible and
in
accordance with the provisions of this Agreement. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall protect and conserve such
REO
Property in the manner and to the extent required herein, in accordance with
the
REMIC Provisions.
(b) The
Master Servicer shall deposit all funds collected and received in connection
with the operation of any REO Property into the Protected Account.
(c) The
Master Servicer, upon the final disposition of any REO Property, shall be
entitled to reimbursement for any related unreimbursed Advances, unreimbursed
Servicing Advances or Servicing Fees from Liquidation Proceeds received in
connection with the final disposition of such REO Property; provided, that
any
such unreimbursed Advances or Servicing Fees as well as any unpaid Servicing
Fees may be reimbursed or paid, as the case may be, prior to final disposition,
out of any net rental income or other net amounts derived from such REO
Property.
Section
3.12 Liquidation
Reports.
Upon
the
foreclosure of any Mortgaged Property or the acquisition thereof by the Trust
Fund pursuant to a deed-in-lieu of foreclosure, the Master Servicer shall submit
a liquidation report to the Trustee containing such information as shall be
mutually acceptable to the Master Servicer and the Trustee with respect to
such
Mortgaged Property.
Section
3.13 Annual
Statement as to Compliance.
The
Master Servicer and the Trustee shall deliver (or otherwise make available)
to
the Master Servicer, the Depositor and the Trustee, not later than March
15th
of each
calendar year beginning in 2007, an Officer’s Certificate (an “Annual Statement
of Compliance”) stating, as to each signatory thereof, that (i) a review of the
activities of each such party during the preceding calendar year and of its
performance under this Agreement has been made under such officer’s supervision
and (ii) to the best of such officer’s knowledge, based on such review, each
such party has fulfilled all of its obligations under this Agreement in all
material respects throughout such year 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. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its
use.
In the event that the Master Servicer or the Trustee has delegated any servicing
responsibilities with respect to the Mortgage Loans to a subservicer or
subcontractor, such servicer or subcontractor shall be directed by such
delegating party to deliver a similar Annual Statement of Compliance by such
subservicer or subcontractor to the Master Servicer, the Depositor and the
Trustee as described above as and when required with respect to the Master
Servicer and the Trustee.
Failure
of the Master Servicer to comply with this Section 3.13 (including
with respect to the time frames required in this Section)
shall be
deemed an Event of Default with respect to such party, and the Trustee at the
direction of the Depositor shall, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, upon notice immediately terminate
all the rights and obligations of the Master Servicer under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof without compensating
the
Master Servicer for the same. Failure of the Trustee to comply with this Section
3.13 (including with respect to the time frames required in this Section) which
failure results in a failure to timely file the Form 10-K shall be deemed a
default which may result in the termination of the Trustee pursuant to Section
9.08 of this Agreement and the Depositor may, in addition to whatever rights
the
Depositor may have under this Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, upon notice immediately
terminate all of the rights and obligations of the Trustee under this Agreement
and in and to the Mortgage Loans and the proceeds thereof without compensating
the Trustee for the same. This paragraph shall supersede any other provision
in
this Agreement or any other agreement to the contrary.
In
the
event the Master Servicer, the Trustee or any subservicer or subcontractor
engaged by either such party is terminated or resigns pursuant to the terms
of
the Agreement, or any other applicable agreement in the case of a subservicer
or
subcontractor, as the case may be, such party shall provide an Annual Statement
of Compliance pursuant to this Section 3.13 or to the related section of such
other applicable agreement, as the case may be, as to the performance of its
obligations with respect to the period of time it was subject to this Agreement
or any other applicable agreement, as the case may be notwithstanding any such
termination or resignation.
Section
3.14 Assessments
of Compliance and Attestation Reports.
The
Master Servicer shall service and administer the Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria. Pursuant to Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB, each
of
the Master Servicer, the Trustee and each Custodian (each, an “Attesting Party”)
at its own expense shall deliver to the Trustee, the Master Servicer and the
Depositor on or before March 15th
of
each
calendar year beginning in 2007, a report signed by an authorized officer of
such party regarding such Attesting Party’s assessment of compliance (an
“Assessment of Compliance”) with the Servicing Criteria during the preceding
calendar year. The Assessment of Compliance, as set forth in Regulation AB,
must
contain the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the related Attesting Party;
(b) A
statement by such officer that such Attesting Party used the Servicing Criteria
attached as Exhibit P hereto, and which will also be attached to the Assessment
of Compliance, to assess compliance with the Servicing Criteria applicable
to
the related Attesting Party;
(c) An
assessment by such officer of the related Attesting Party’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities such Attesting Party performs with respect to asset-backed securities
transactions taken as a whole involving the related Attesting Party, that are
backed by the same asset type as the Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the related Attesting Party’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
such Attesting Party, which statement shall be based on the activities such
Attesting Party performs with respect to asset-backed securities transactions
taken as a whole involving such Attesting Party, that are backed by the same
asset type as the Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit P hereto which are indicated as applicable to the related Attesting
Party.
Notwithstanding
the foregoing, as to the Trustee and any Custodian, an Assessment of Compliance
is not required to be delivered unless it is required as part of a Form 10-K
with respect to the Trust Fund.
On
or
before March 15th of each calendar year beginning in 2007, each Attesting Party
shall furnish to the Master Servicer, the Depositor and the Trustee a report
(an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the related Attesting
Party, as required by Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122(b) of Regulation AB, which Attestation Report must be made in accordance
with standards for attestation reports issued or adopted by the Public Company
Accounting Oversight Board.
The
Master Servicer shall cause any subservicer and each subcontractor determined
by
it to be “participating in the servicing function” within the meaning of Item
1122 of Regulation AB, to deliver to the Trustee, the Master Servicer and the
Depositor an Assessment of Compliance and Attestation Report as and when
provided above along with an indication of what Servicing Criteria are addressed
in such assessment.
The
Trustee shall confirm that the assessments, taken as a whole, address all of
the
Servicing Criteria and taken individually address the Servicing Criteria for
each party as set forth on Exhibit P and notify the Depositor of any exceptions.
Notwithstanding the foregoing, as to any subcontractor (as defined in the
related servicing agreement), an Assessment of Compliance is not required to
be
delivered unless it is required as part of a Form 10-K with respect to the
Trust
Fund.
In
addition, for the avoidance of doubt and without duplication, the Master
Servicer shall (and shall cause each subservicer engaged by it to) provide
the
following information to the Depositor and the Trustee: (A) any Event of Default
hereunder and any subservicer event of default under the terms of the related
Subservicing Agreement, (B) any merger, consolidation or sale of substantially
all of the assets of the Master Servicer or, to the best of the Master
Servicer’s knowledge, any such subservicer, and (C) the Master Servicer’s entry
into an agreement with a subservicer to perform or assist in the performance
of
any of the Master Servicer’s obligations.
In
addition, the Master Servicer, shall cause each subservicer engaged by it to
provide the following information to the Depositor and the Trustee, to the
extent applicable, within the timeframes that the Master Servicer would
otherwise have to provide such information:
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
Failure
of the Master Servicer to comply with this Section 3.14 (including with respect
to the time frames required in this Section) shall be deemed an Event of
Default, and the Trustee at the direction of the Depositor shall, in addition
to
whatever rights the Trustee may have under this Agreement and at law or in
equity or to damages, including injunctive relief and specific performance,
upon
notice immediately terminate all the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Master Servicer for the same. This paragraph
shall supersede any other provision in this Agreement or any other agreement
to
the contrary.
In
the
event the Master Servicer, each Custodian, the Trustee or any subservicer or
subcontractor engaged by any such party is terminated, assigns its rights and
obligations under, or resigns pursuant to, the terms of the Agreement, the
related Custodial Agreement, or any other applicable agreement in the case
of a
subservicer or subcontractor, as the case may be, such party shall provide
an
Assessment of Compliance and cause to be provided an Attestation Report pursuant
to this Section 3.14 or to the related section of such other applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
3.15 Books
and Records.
The
Master Servicer shall be responsible for maintaining, and shall maintain, a
complete set of books and records for the Mortgage Loans which shall be
appropriately identified in the Master Servicer’s computer system to clearly
reflect the ownership of the Mortgage Loans by the Trust. In particular, the
Master Servicer shall maintain in its possession, available for inspection
by
the Trustee and shall deliver to the Trustee upon demand, evidence of compliance
with all federal, state and local laws, rules and regulations. To the extent
that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Master
Servicer may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including, but not limited to, optical
imagery techniques so long as the Master Servicer complies with the requirements
of Accepted Servicing Practices.
The
Master Servicer shall maintain with respect to each Mortgage Loan and shall
make
available for inspection by the Trustee the related servicing file during the
time such Mortgage Loan is subject to this Agreement and thereafter in
accordance with applicable law.
Payments
on the Mortgage Loans, including any payoffs, made in accordance with the
related Mortgage File will be entered in the Master Servicer’s set of books and
records no more than two Business Days after receipt and identification, and
allocated to principal or interest as specified in the related Mortgage
File.
Section
3.16 Reports
Filed with Securities and Exchange Commission.
(a) (i)Within
15
days after each Distribution Date (subject to permitted exceptions under the
Exchange Act), the Trustee shall, in accordance with industry standards, prepare
and file with the Commission via the Electronic Data Gathering and Retrieval
System (“XXXXX”), a Form 10-D, signed by the Master Servicer, with a copy of the
Monthly Statement to be furnished by the Trustee to the Certificateholders
for
such Distribution Date attached thereto; provided that the Trustee shall have
received no later than seven (7) calendar days after the related Distribution
Date, all information required to be provided to the Trustee as described in
clause (a)(ii) below. Any disclosure in addition to the Monthly Statement that
is required to be included on Form 10-D (“Additional Form 10-D Disclosure”)
shall
be
reported by the parties set forth on Exhibit Q to the Trustee and the Depositor
and approved by the Depositor pursuant to the paragraph immediately below,
and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Disclosure absent such reporting
(other than with respect to when it is the reporting party as set forth in
Exhibit Q) and approval.
(ii) (A)
Within seven (7) calendar days after the related Distribution Date, (i) the
parties set forth in Exhibit Q shall be required to provide, pursuant to section
3.16(a)(v) below, to the Trustee and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trustee and the Depositor and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, and (ii) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit Q of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
out-of-pocket expenses incurred by the Trustee in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this Section.
(B) After
preparing the Form 10-D, the Trustee shall, upon request or if such Form 10-D
includes any Additional Form 10-D Disclosure, forward electronically a draft
copy of the Form 10-D to the Depositor and the Master Servicer for review.
No
later than two (2) Business Days prior to the 15th calendar day after the
related Distribution Date, a duly authorized officer of the Master Servicer
shall sign the Form 10-D and return an electronic or fax copy of such signed
Form 10-D (with an original executed hard copy to follow by overnight mail)
to
the Trustee. If a Form 10-D cannot be filed on time or if a previously filed
Form 10-D needs to be amended, the Trustee will follow the procedures set forth
in Section 3.16(a)(vi). Promptly (but no later than one (1) Business Day) after
filing with the Commission, the Trustee will make available on its internet
website identified in Section 5.06 a final executed copy of each Form 10-D.
The
signing party at the Master Servicer can be contacted at 000-000-0000. Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it (1)
has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days. The Depositor shall notify the Trustee
in writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D, if the answer to
either question should be "no." The Trustee shall be entitled to rely on the
Depositor’s representations in Section 2.04(vi) in preparing and/or filing any
such Form 10-D. The parties to this Agreement acknowledge that the performance
by the Trustee of its duties under Sections 3.16(a)(i) and (vi) related to
the
timely preparation and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under such Sections. It is understood by the parties hereto that the performance
by the Trustee of its duties under this Section 3.16(a)(ii) related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Custodian and any subservicers or subcontractors strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Trustee of any necessary
Additional Form 10-D Disclosure pursuant to the Custodial Agreement or any
other
applicable agreement. The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the
failure of any party hereto to deliver on a timely basis, any information needed
by the Trustee to prepare, arrange for execution or file such Form
10-D.
(iii) (A)
Within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), the Trustee
shall prepare and file, on behalf of the Trust, at the direction of the
Depositor, any Form 8-K, as required by the Exchange Act; provided that, the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be, pursuant to the paragraph immediately below, reported by
the parties set forth on Exhibit Q to the Trustee and the Depositor and directed
and approved by the Depositor pursuant to the following paragraph, and the
Trustee will have no duty or liability for any failure hereunder to determine
or
prepare any Additional Form 8-K Disclosure absent such reporting (other than
with respect to when it is the reporting party as set forth in Exhibit Q) and
approval.
(B) For
so
long as the Trust is subject to the Exchange Act reporting requirements, (i)
no
later than the end of business New York City time on the 2nd Business Day after
the occurrence of a Reportable Event the parties set forth in Exhibit Q shall
be
required pursuant to Section 3.16(a)(v) below to provide to the Trustee and
the
Depositor, to the extent known, in XXXXX-compatible format, or in such other
form as otherwise agreed upon by the Trustee and the Depositor and such party,
the form and substance of any Form 8-K Disclosure Information, if applicable,
and (ii) the Depositor will approve, as to form and substance, or disapprove,
as
the case may be, the inclusion of the Form 8-K Disclosure Information on Form
8-K. The Trustee has no duty under this Agreement to monitor or enforce the
performance by the other parties listed on Exhibit Q of their duties under
this
paragraph or to proactively solicit or procure from such parties any Additional
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable out-of-pocket expenses incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
Section.
(C) After
preparing the Form 8-K, the Trustee shall, upon request, forward electronically
a draft copy of the Form 8-K to the Depositor and the Master Servicer for
review. No later than the end of business New York City time on the 3rd Business
Day after the Reportable Event, a duly authorized officer of the Master Servicer
shall sign the Form 8-K and return an electronic or fax copy of such signed
Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 8-K cannot be filed on time or if a previously filed Form
8-K
needs to be amended, the Trustee will follow the procedures set forth in Section
3.16(a)(vi). Promptly (but no later than one (1) Business Day) after filing
with
the Commission, the Trustee will, make available on its internet website
identified in Section 5.06 a final executed copy of each Form 8-K. The signing
party at the Master Servicer can be contacted at 000-000-0000. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 3.16(a)(iii) related to the timely preparation and filing
of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 3.16(a)(iii).
It
is understood by the parties hereto that the performance by the Trustee of
its
duties under this Section 3.16(a)(iii) related to the timely preparation,
execution and filing of Form 8-K is also contingent upon the Custodian and
any
subservicers or subcontractors strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Trustee of any necessary Form 8-K Disclosure Information
pursuant to the Custodial Agreement or any other applicable agreement. The
Trustee shall have no liability for any loss, expense, damage or claim arising
out of or with respect to any failure to properly prepare and/or timely file
such Form 8-K, where such failure results from the failure of any party hereto
to deliver on a timely basis, any information needed by the Trustee to prepare,
arrange for execution or file such Form 8-K.
(D) On
or
prior to the 90th day after the end of each fiscal year of the Trust or such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2007, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement, (I) an Annual Statement of Compliance
for the Trustee, Master Servicer and any subservicer, as described under Section
3.13, (II)(A) the Assessment of Compliance with Servicing Criteria for the
Master Servicer and each subservicer and subcontractor participating in the
servicing function, the Trustee and the Custodian, as described under Section
3.14, and (B) if the Assessment of Compliance of the Master Servicer, the
Trustee or the Custodian described under Section 3.14 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if the Assessment of Compliance of the Master Servicer, the
Trustee or the Custodian described under Section 3.14 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, (III)(A) the registered public
accounting firm Attestation Report for the Master Servicer, the Trustee and
the
Custodian, as described under Section 3.14, and (B) if any registered public
accounting firm Attestation Report described under Section 3.14 identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm Attestation
Report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(IV) a Xxxxxxxx-Xxxxx Certification (“Xxxxxxxx-Xxxxx Certification”) as
described in this Section 3.16 (a)(iv)(D) below. Any disclosure or information
in addition to (I) through (IV) above that is required to be included on Form
10-K (“Additional Form 10-K Disclosure”) shall be reported by the parties set
forth on Exhibit Q to the Trustee and the Depositor and, pursuant to the
paragraph immediately below, approved by the Depositor, and the Trustee will
have no duty or liability for any failure hereunder to determine or prepare
any
Additional Form 10-K Disclosure absent such reporting (other than with respect
to when it is the reporting party as set forth in Exhibit Q) and
approval.
(E) No
later
than March 15th of each year that the Trust is subject to the Exchange Act
reporting requirements, commencing in 2007, (i) the parties set forth in Exhibit
Q shall be required to provide pursuant to Section 3.16(a)(v) below to the
Trustee and the Depositor, to the extent known, in XXXXX-compatible format,
or
in such other format as otherwise agreed upon by the Trustee and the Depositor
and such party, the form and substance of any Additional Form 10-K Disclosure,
if applicable, and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the other parties listed on Exhibit Q of their
duties under this paragraph or to proactively solicit or procure from such
parties any Additional Form 10-K Disclosure information. The Depositor will
be
responsible for any reasonable out-of-pocket expenses incurred by the Trustee
in
connection with including any Form 10-K Disclosure Information on Form 10-K
pursuant to this Section.
(F) After
preparing the Form 10-K, the Trustee shall, upon request, forward electronically
a draft copy of the Form 10-K to the Depositor and the Master Servicer for
review. Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it (1) has filed all reports required to be filed by Section 13
or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days. The Depositor shall
notify the Trustee in writing, no later than the fifteenth calendar day of
March
in any year in which the Trust is subject to the reporting requirements of
the
Exchange Act, if the answer to either question should be "no." The Trustee
shall
be entitled to rely on the Depositor’s representations in Section 2.04(vi) in
preparing and/or filing any such Form 10-K. No
later
than 12:00 p.m. New York City time on the 4th Business Day prior to the 10-K
Filing Deadline, a senior officer of the Master Servicer in charge of the
servicing function shall sign the Form 10-K and return an electronic or fax
copy
of such signed Form 10-K (with an original executed hard copy to follow by
overnight mail) to the Trustee. If a Form 10-K cannot be filed on time or if
a
previously filed Form 10-K needs to be amended, the Trustee will follow the
procedures set forth in Section 3.16(a)(vi). Promptly (but no later than one
(1)
Business Day) after filing with the Commission, the Trustee will make available
on its internet website identified in Section 5.06 a final executed copy of
each
Form 10-K. The signing party at the Master Servicer can be contacted at
000-000-0000. The parties to this Agreement acknowledge that the performance
by
the Trustee of its duties under Section 3.16(a)(iv) related to the timely
preparation and filing of Form 10-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
Section 3.13 and Section 3.14. It is understood by the parties hereto that
the
performance by the Trustee of its duties under this Section 3.16(a)(iv) related
to the timely preparation, execution and filing of Form 10-K is also contingent
upon the Custodian and any subservicer or subcontractor strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Trustee of any necessary
Additional Form 10-K Disclosure, any annual statement of compliance and any
assessment of compliance and attestation pursuant to the Custodial Agreement or
any other applicable agreement. The Trustee shall have no liability for any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare and/or timely file such Form 10-K, where such failure results
from the failure of any party hereto to deliver on a timely basis, any
information needed by the Trustee to prepare, arrange for execution or file
such
Form 10-K.
(G) Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”) required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Trustee shall,
and the Master Servicer shall cause any subservicer or subcontractor engaged
by
it to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
“Certifying Person”), by March 15 of each year in which the Trust is subject to
the reporting requirements of the Exchange Act and otherwise within a reasonable
period of time upon request, a certification (each, a “Back-Up Certification”),
in the form attached hereto as Exhibit K, 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; provided, however, that the
Trustee shall not be required to undertake an analysis of any accountant’s
report attached as an exhibit to the Form 10-K. The senior officer of the Master
Servicer shall serve as the Certifying Person on behalf of the Trust. Such
officer of the Certifying Person can be contacted at 000-000-0000.
In
the
event the Trustee is terminated or resigns pursuant to the terms of this
Agreement or any subcontractor or subservicer is terminated pursuant to the
related servicing agreement, the Trustee, subcontractor or subservicer, as
applicable, shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 3.16(a)(iv) with respect to the period of time it
was
subject to this Agreement or the related servicing agreement, as
applicable.
(iv) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund in the form attached hereto as Exhibit
R, the Trustee’s obligation to include such Additional Information in the
applicable Exchange Act report is subject to receipt from the entity that is
indicated in Exhibit Q as the responsible party for providing that information,
if other than the Trustee, as and when required as described in Section
3.16(a)(i) through (iv) above. Each of the Master Servicer, Seller, and
Depositor hereby agree to notify and provide (to the extent known) to the
Trustee and the Depositor all Additional Disclosure relating to the Trust Fund,
with respect to which such party is indicated in Exhibit Q as the responsible
party for providing that information. Within
five Business Days prior to each Distribution Date occurring in any year that
the Trust is subject to the Exchange Act reporting requirements, the Depositor
shall make available to the Trustee the related Significance Estimate and the
Trustee shall use such information to calculate the related Significance
Percentage. The
Trustee shall provide the Significance Percentage to the Depositor by the later
of the Distribution Date or three (3) Business Days after the receipt of the
Significance Estimate from the Depositor. If the Significance Percentage meets
either of the threshold levels detailed in Item 1115(b)(1) or 1115(b)(2) of
Regulation AB, the Trustee shall deliver written notification to the Depositor
and the related Swap Provider to that effect. The
Trustee shall request from the Depositor and the Depositor shall deliver to
the
Trustee any information that the related Swap Provider delivered to the
Depositor as required under Regulation AB, to the extent required under the
related Swap Agreement. The Depositor shall be obligated to provide to the
Trustee (no later than, in the case of Form 10-D, the seventh calendar day
after
the Distribution Date and in the case of Form 10-K, March 15th
in any
year in which a Form 10-K is filed for the Trust) any information that may
be
required to be included in any Form 10-D, Form 8-K or Form 10-K or written
notification instructing the Trustee that such Additional Disclosure regarding
the related Swap Provider is not necessary for such Distribution Date.
The
Master Servicer shall be responsible for determining the pool concentration
applicable to any subservicer or originator at any time.
(v) (A)
On or
prior to January 30 of the first year in which the Trustee is able to do so
under applicable law, the Trustee shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act.
(B) In
the
event that the Trustee is unable to timely file with the Commission all or
any
required portion of any Forms 8-K, 10-D or 10-K required to be filed by this
Agreement because required disclosure information was either not delivered
to it
or delivered to it after the delivery deadlines set forth in this Agreement
or
for any other reason, the Trustee will immediately notify the Depositor and
the
Master Servicer. In the case of Forms 10-D and 10-K, the Depositor, Master
Servicer and Trustee will cooperate to prepare and file a Form 12b-25 and a
10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act.
In
the case of Form 8-K, the Trustee will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Forms 8-K, 10-D or 10-K needs to be amended, the Trustee will
notify the Depositor and the Master Servicer and such parties will cooperate
to
prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or
any
amendment to Forms 8-K, 10-D or 10-K shall be signed by a senior officer of
the
Master Servicer. The Depositor and Master Servicer acknowledge that the
performance by the Trustee of its duties under this Section 3.16(a)(vi) related
to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment
to Forms 8-K, 10-D or 10-K is contingent upon the Master Servicer and the
Depositor performing their duties under this Section. The Trustee shall have
no
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the failure of any party hereto to deliver on a timely basis, any information
needed by the Trustee to prepare, arrange for execution or file such Form 15,
Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K.
The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within
its
control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file all necessary reports with
the
Commission. The Trustee shall have no responsibility to file any items other
than those specified in this Section 3.16; provided, however, the Trustee shall
cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Exchange
Act. Copies of all reports filed by the Trustee under the Exchange Act shall
be
sent to: the Depositor c/o Bear, Xxxxxxx & Co. Inc., Attn: Managing Director
Analysis and Control, Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000.
Fees and expenses incurred by the Trustee in connection with this Section 3.16
shall not be reimbursable from the Trust Fund.
(b) In
connection with the filing of any 10-K hereunder, the Trustee shall sign a
Back-Up Certification substantially in the form attached hereto as Exhibit
K for
the Depositor regarding certain aspects of the Form 10-K certification signed
by
the Master Servicer; provided, however, the Trustee shall not be required to
undertake an analysis of any accountant’s report attached as an exhibit to the
Form 10-K.
(c) The
Trustee shall indemnify and hold harmless, the Depositor and the Master Servicer
and each of its officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Trustee’s obligations under Sections 3.13, 3.14 and 3.16 or
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith. In addition, the Trustee shall indemnify and hold harmless the
Depositor and the Master Servicer and each of their officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any Back-Up Certification,
the Annual Statement of Compliance, the Assessment of Compliance, any Additional
Disclosure or other information provided by the Trustee pursuant to Section
3.13, 3.14 and 3.16 (the “Trustee Information”), or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading; provided, by way of clarification, that clause
(ii) of this paragraph shall be construed solely by reference to the Trustee
Information and not to any other information communicated in connection with
the
Certificates, without regard to whether the Trustee Information or any portion
thereof is presented together with or separately from such other
information.