GREENWICH CAPITAL ACCEPTANCE, INC., Depositor THORNBURG MORTGAGE HOME LOANS, INC., Seller WELLS FARGO BANK, N.A., Master Servicer and Securities Administrator and LASALLE BANK NATIONAL ASSOCIATION, Trustee and Custodian POOLING AND SERVICING AGREEMENT...
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
Seller
XXXXX
FARGO BANK, N.A.,
Master
Servicer and
Securities
Administrator
and
LASALLE
BANK NATIONAL ASSOCIATION,
Trustee
and Custodian
Dated
as
of February 1, 2008
__________________________________
Xxxxxxxxx
Mortgage Securities Trust 2008-1
Mortgage
Loan Pass-Through Certificates, Series 2008-1
Table
of Contents
Page
|
ARTICLE
I DEFINITIONS; DECLARATION OF TRUST
|
7
|
|
SECTION
1.01. Defined Terms.
|
7
|
|
SECTION
1.02. Accounting.
|
49
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
49
|
|
SECTION
2.01. Conveyance of Mortgage Loans.
|
49
|
|
SECTION
2.02. Acceptance by Trustee.
|
53
|
|
SECTION
2.03. Repurchase or Substitution of Mortgage Loans by the
Seller.
|
54
|
|
SECTION
2.04. Representations and Warranties of the Seller with Respect to
the
Mortgage Loans.
|
57
|
|
SECTION
2.05. [Reserved].
|
58
|
|
SECTION
2.06. Representations and Warranties of the Depositor.
|
58
|
|
SECTION
2.07. Issuance of Certificates.
|
60
|
|
SECTION
2.08. Representations and Warranties of the Seller.
|
60
|
|
SECTION
2.09. Covenants of the Seller.
|
61
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
|
62
|
|
SECTION
3.01. Master Servicer to Service and Administer the Mortgage
Loans.
|
62
|
|
SECTION
3.02. REMIC-Related Covenants.
|
63
|
|
SECTION
3.03. Monitoring of Servicers.
|
63
|
|
SECTION
3.04. Fidelity Bond.
|
65
|
|
SECTION
3.05. Power to Act; Procedures.
|
65
|
|
SECTION
3.06. Due-on-Sale Clauses; Assumption Agreements.
|
66
|
|
SECTION
3.07. Release of Mortgage Files.
|
67
|
|
SECTION
3.08. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trust.
|
68
|
|
SECTION
3.09. Standard Hazard Insurance and Flood Insurance
Policies.
|
68
|
|
SECTION
3.10. Presentment of Claims and Collection of Proceeds.
|
69
|
|
SECTION
3.11. Maintenance of the Primary Insurance Policies.
|
69
|
|
SECTION
3.12. Trustee to Retain Possession of Certain Insurance Policies
and
Documents.
|
70
|
|
SECTION
3.13. Realization Upon Defaulted Mortgage Loans.
|
70
|
|
SECTION
3.14. Additional Compensation to the Master Servicer.
|
70
|
|
SECTION
3.15. REO Property.
|
71
|
|
SECTION
3.16. Assessments of Compliance and Attestation Reports.
|
71
|
|
SECTION
3.17. Annual Compliance Statement.
|
74
|
|
SECTION
3.18. Xxxxxxxx-Xxxxx Certification.
|
75
|
|
SECTION
3.19. Reports Filed with Securities and Exchange
Commission.
|
75
|
|
SECTION
3.20. Additional Information.
|
81
|
|
SECTION
3.21. Intention of the Parties and Interpretation.
|
81
|
|
SECTION
3.22. Indemnification.
|
81
|
i
|
SECTION
3.23. Amendments to Master Servicing Guide and Correspondent Sellers
Guide.
|
82
|
|
SECTION
3.24. UCC.
|
83
|
|
SECTION
3.25. Optional and Required Purchases of Certain Mortgage
Loans.
|
83
|
|
SECTION
3.26. Realization upon Troubled Mortgage Loans.
|
84
|
|
SECTION
3.27. Closing Certificate and Opinion.
|
84
|
|
SECTION
3.28. Liabilities of the Master Servicer.
|
84
|
|
SECTION
3.29. Merger or Consolidation of the Master Servicer.
|
84
|
|
SECTION
3.30. Indemnification of the Trustee, the Seller, the Master Servicer
and
the Securities Administrator.
|
85
|
|
SECTION
3.31. Limitations on Liability of the Master Servicer and Others;
Indemnification of Trustee and Others.
|
86
|
|
SECTION
3.32. Master Servicer Not to Resign.
|
87
|
|
SECTION
3.33. Successor Master Servicer.
|
87
|
|
SECTION
3.34. Sale and Assignment of Master Servicing.
|
88
|
|
SECTION
3.35. Reporting Requirements of the Commission.
|
88
|
|
ARTICLE
IV ACCOUNTS
|
88
|
|
SECTION
4.01. Servicing Accounts.
|
88
|
|
SECTION
4.02. Distribution Account.
|
90
|
|
SECTION
4.03. Permitted Withdrawals and Transfers from the Distribution
Account.
|
92
|
|
ARTICLE
V FLOW OF FUNDS
|
94
|
|
SECTION
5.01. Distributions.
|
94
|
|
SECTION
5.02. [Reserved]
|
99
|
|
SECTION
5.03. Allocation of Realized Losses.
|
99
|
|
SECTION
5.04. Statements.
|
101
|
|
SECTION
5.05. Remittance Reports; Advances.
|
104
|
|
SECTION
5.06. Compensating Interest Payments.
|
105
|
|
SECTION
5.07. [Reserved].
|
105
|
|
SECTION
5.08. [Reserved].
|
105
|
|
SECTION
5.09. [Reserved].
|
105
|
|
SECTION
5.10. Recoveries.
|
105
|
|
ARTICLE
VI THE CERTIFICATES
|
106
|
|
SECTION
6.01. The Certificates.
|
106
|
|
SECTION
6.02. Registration of Transfer and Exchange of
Certificates.
|
107
|
|
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
|
113
|
|
SECTION
6.04. Persons Deemed Owners.
|
113
|
|
SECTION
6.05. Appointment of Paying Agent.
|
114
|
|
SECTION
6.06. Optional Purchase of Certificates.
|
114
|
|
ARTICLE
VII DEFAULT
|
116
|
|
SECTION
7.01. Event of Default.
|
116
|
|
SECTION
7.02. Trustee to Act.
|
118
|
|
SECTION
7.03. Waiver of Event of Default.
|
119
|
ii
|
SECTION
7.04. Notification to Certificateholders.
|
120
|
|
ARTICLE
VIII THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
120
|
|
SECTION
8.01. Duties of Trustee and Securities Administrator.
|
120
|
|
SECTION
8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
122
|
|
SECTION
8.03. Trustee and the Securities Administrator Not Liable for
Certificates, Mortgage Loans or Additional Collateral.
|
123
|
|
SECTION
8.04. Trustee, Custodian, Master Servicer and Securities Administrator
May
Own Certificates.
|
124
|
|
SECTION
8.05. Trustee’s and Securities Administrator’s Fees and
Expenses.
|
124
|
|
SECTION
8.06. Eligibility Requirements for Trustee and Securities
Administrator.
|
125
|
|
SECTION
8.07. Resignation or Removal of Trustee and Securities
Administrator.
|
125
|
|
SECTION
8.08. Successor Trustee and Successor Securities
Administrator.
|
127
|
|
SECTION
8.09. Merger or Consolidation of Trustee or Securities
Administrator.
|
127
|
|
SECTION
8.10. Appointment of Co-Trustee or Separate Trustee.
|
127
|
|
SECTION
8.11. Limitation of Liability.
|
129
|
|
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
|
129
|
|
SECTION
8.13. Suits for Enforcement.
|
130
|
|
SECTION
8.14. Waiver of Bond Requirement.
|
130
|
|
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
|
130
|
|
SECTION
8.16. Appointment of Custodians.
|
130
|
|
ARTICLE
IX REMIC ADMINISTRATION
|
131
|
|
SECTION
9.01. REMIC Administration.
|
131
|
|
SECTION
9.02. Prohibited Transactions and Activities.
|
133
|
|
ARTICLE
X TERMINATION
|
133
|
|
SECTION
10.01. Termination.
|
133
|
|
SECTION
10.02. Additional Termination Requirements.
|
135
|
|
ARTICLE
XI DISPOSITION OF TRUST ASSETS
|
135
|
|
SECTION
11.01. Disposition of Trust Assets.
|
135
|
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
135
|
|
SECTION
12.01. Amendment.
|
135
|
|
SECTION
12.02. Recordation of Agreement; Counterparts.
|
137
|
|
SECTION
12.03. Limitation on Rights of Certificateholders.
|
137
|
|
SECTION
12.04. Governing Law; Jurisdiction.
|
138
|
|
SECTION
12.05. Notices.
|
138
|
|
SECTION
12.06. Severability of Provisions.
|
139
|
|
SECTION
12.07. Article and Section References.
|
139
|
|
SECTION
12.08. Notice to the Rating Agencies.
|
139
|
|
SECTION
12.09. Further Assurances.
|
140
|
|
SECTION
12.10. Benefits of Agreement.
|
140
|
|
SECTION
12.11. Acts of Certificateholders.
|
140
|
iii
|
SECTION
12.12. Successors and Assigns.
|
141
|
|
SECTION
12.13. Derivatives Transactions.
|
141
|
EXHIBITS
AND SCHEDULES:
|
Exhibit
A-1
|
Form
of Senior Certificate (Other than Senior Interest-Only
Certificate)
|
A-1
|
|
Exhibit
A-2
|
Form
of Senior Interest-Only Certificate
|
A-1
|
|
Exhibit
B
|
[Reserved]
|
B-1
|
|
Exhibit
C
|
Form
of Class A-R and Class 4A-R Certificate
|
C-1
|
|
Exhibit
D
|
Form
of Subordinate Certificate Relating to Loan Groups 1, 2
|
|
|
and
3 and Loan Group 4
|
D-1
|
|
|
Exhibit
E
|
Form
of Reverse of the Certificates
|
E-1
|
|
Exhibit
F
|
Request
for Release
|
F-1
|
|
Exhibit
G-1
|
Form
of Receipt of Mortgage Note
|
G-1-1
|
|
Exhibit
G-2
|
Form
of Interim Certificate of Trustee
|
G-2-1
|
|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3-1
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H-1
|
|
Exhibit
I
|
Form
of ERISA Representation
|
I-1
|
|
Exhibit
J-1
|
Form
of Investment Letter [Non-Rule 000X]
|
X-0-0
|
|
Xxxxxxx
X-0
|
Form
of Rule 144A Investment Letter
|
J-2-1
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K-1
|
|
Exhibit
L
|
Transfer
Affidavit for Class A-R and Class 4A-R Certificates Pursuant
|
|
|
to
Section 6.02(e)
|
L-1
|
|
|
Exhibit
M
|
[Reserved]
|
M-1
|
|
Exhibit
N
|
List
of Servicers and Servicing Agreements
|
N-1
|
|
Exhibit
O
|
Notice
of Exercise of Optional Securities Purchase Right
|
O-1
|
|
Exhibit
P
|
[Reserved]
|
P-1
|
|
Exhibit
Q
|
Servicing
Criteria
|
Q-1
|
|
Exhibit
R
|
Additional
Form 10-D Disclosure
|
R-1
|
|
Exhibit
S
|
Additional
Form 00-X Xxxxxxxxxx
|
X-0
|
|
Exhibit
T
|
Form
8-K Disclosure Information
|
T-1
|
|
Exhibit
U
|
Form
of Additional Disclosure Notification
|
U-1
|
|
Schedule
I
|
Aggregate
Mortgage Loan Schedule
|
|
Schedule
II
|
Group
1 Mortgage Loan Schedule
|
|
Schedule
III
|
Group
2 Mortgage Loan Schedule
|
|
Schedule
IV
|
Group
3 Mortgage Loan Schedule
|
| Schedule V |
Group
4 Mortgage Loan Schedules
|
iv
This
Pooling and Servicing Agreement is dated as of February 1, 2008 (the
“Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
XXXXXXXXX MORTGAGE HOME LOANS, INC., a Delaware corporation, as seller (the
“Seller”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”)
and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(in such capacity, the “Trustee”)
and
custodian (in such capacity, the “Custodian”).
PRELIMINARY
STATEMENT:
Pursuant
to this Agreement, the Depositor intends to cause the issuance and sale of
the
Trust’s Mortgage Pass-Through Certificates, Series 2008-1 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust,
the
primary assets of which are the Mortgage Loans (as defined below).
On
or
prior to the Closing Date, the Depositor acquired the Mortgage Loans from the
Seller pursuant to the Mortgage Loan Purchase Agreement (as defined below).
On
the Closing Date, the Depositor will sell the Mortgage Loans and certain other
property to the Trust and receive in consideration therefor the Certificates
evidencing the entire beneficial ownership of the Trust.
The
Depositor intends to sell and deliver to the Seller or its designee the
Certificates, to be issued hereunder in multiple classes, which in the aggregate
will evidence the entire beneficial ownership interest in the Trust. The
Certificates will consist of nineteen classes of certificates, designated as
(i)
the Class 1A-1 Certificates, (ii) the Class 1A-2 Certificates, (iii) the Class
1-AX certificates, (iv) the Class 2A-1 Certificates, (v) the Class 2A-2
Certificates, (vi) the Class 2-AX Certificates, (vii) the Class 3A-1
Certificates, (viii) the Class 3A-2 Certificates, (ix) the Class 3-AX
Certificates, (x) the Class 4A-1 Certificates, (xi) the Class 4A-2 Certificates,
(xii) the Class 4-AX Certificates, (xiii) the Class A-R Certificate, (xiv)
the
Class B-1 Certificates, (xv) the Class B-2 Certificates, (xvi) the Class B-3
Certificates, (xvii) the Class B-4 Certificates, (xviii) the Class B-5
Certificates and (xix) the Class B-6 Certificates.
For
federal income tax purposes, the Trust Fund comprises three REMICs: the
lower-tier REMIC (the “Lower-Tier
REMIC”;
the
middle-tier REMIC (the “Middle-Tier
REMIC”);
and
the upper-tier REMIC (the “Upper-Tier
REMIC”).
The
Lower-Tier REMIC will hold as its assets all of the assets of the Trust Fund,
other than the Additional Collateral, and will issue interests (the
“Lower-Tier
Regular Interests”),
which
will be uncertificated and will represent the regular interests in the Lower
Tier REMIC, and a residual interest (the “LT-R
Interest”),
ownership of which will be evidenced by the Class A-R Certificate and which
will
represent the sole class of residual interest in the Lower-Tier REMIC. The
Trustee will hold the Lower-Tier Regular Interests as assets of the Middle-Tier
REMIC, which will issue interests (the “Middle-Tier
Regular Interests”),
which
will be uncertificated and will represent the regular interests in the
Middle-Tier REMIC, and a residual interest (the “MT-R
Interest”),
ownership of which will be evidenced by the Class A-R Certificate and which
will
represent the sole class of residual interest in the Middle-Tier REMIC. The
Trustee will hold the Middle-Tier REMIC Regular Interests as assets of the
Upper-Tier REMIC. Each Certificate, other than the Class A-R Certificates,
will
represent regular interests in the Upper-Tier REMIC, and the Class A-R
Certificate will represent the residual interest in the Upper-Tier REMIC as
well
as ownership of the LT-R Interest and MT-R Interest.
All
REMIC
regular and residual interests created hereby will be retired on or before
the
Latest Possible Maturity Date.
Lower-Tier
REMIC
The
following table specifies the designation, interest rate, initial principal
amount, and related Loan Group for each Lower-Tier Regular
Interest:
|
Lower-Tier
Designation
|
Interest
Rate
|
Initial
Principal
Amount
|
Related
Loan Group
|
|
LT-Group
1
|
(1)
|
(5)
|
1
|
|
LT-Group
1 SCA
|
(1)
|
(6)
|
1
|
|
LT-Group
2
|
(2)
|
(7)
|
2
|
|
LT-Group
2 SCA
|
(2)
|
(8)
|
2
|
|
LT-Group
3
|
(3)
|
(9)
|
3
|
|
LT-Group
3 SCA
|
(3)
|
(10)
|
3
|
|
LT-Group
4
|
(4)
|
(11)
|
4
|
|
LT-Group
4 SCA
|
(4)
|
(12)
|
4
|
|
LT-R
|
(13)
|
(13)
|
N/A
|
__________________
|
(1)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Lower-Tier Regular Interests will be a per annum
rate
equal to the Net WAC for Loan Group 1.
|
|
(2)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Lower-Tier Regular Interests will be a per annum
rate
equal to the Net WAC for Loan Group
2.
|
|
(3)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Lower-Tier Regular Interests will be a per annum
rate
equal to the Net WAC for Loan Group 3.
|
|
(4)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Lower-Tier Regular Interests will be a per annum
rate
equal to the Net WAC for Loan Group 4.
|
|
(5)
|
An
amount equal to the excess of (i) the Loan Group Balance for Loan
Group 1
for the first Distribution Date over (ii) the product of (a) 1.00%
multiplied by (ii) the Subordinate Component for Loan Group 1 for
the
first Distribution Date.
|
|
(6)
|
An
amount equal to the product of (i) 1.00% multiplied by (ii) the
Subordinate Component for Loan Group 1 for the first Distribution
Date.
|
|
(7)
|
An
amount equal to the excess of (i) the Loan Group Balance for Loan
Group 2
for the first Distribution Date over (ii) the product of (a) 1.00%
multiplied by (ii) the Subordinate Component for Loan Group 2 for
the
first Distribution Date.
|
|
(8)
|
An
amount equal to the product of (i) 1.00% multiplied by (ii) the
Subordinate Component for Loan Group 2 for the first Distribution
Date.
|
2
|
(9)
|
An
amount equal to the excess of (i) the Loan Group Balance for Loan
Group 3
for the first Distribution Date over (ii) the product of (a) 1.00%
multiplied by (ii) the Subordinate Component for Loan Group 3 for
the
first Distribution Date.
|
|
(10)
|
An
amount equal to the product of (i) 1.00% multiplied by (ii) the
Subordinate Component for Loan Group 3 for the first Distribution
Date.
|
|
(11)
|
An
amount equal to the excess of (i) the Loan Group Balance for Loan
Group 4
for the first Distribution Date over (ii) the product of (a) 1.00%
multiplied by (ii) the Subordinate Component for Loan Group 4 for
the
first Distribution Date.
|
|
(12)
|
An
amount equal to the product of (i) 1.00% multiplied by (ii) the
Subordinate Component for Loan Group 4 for the first Distribution
Date.
|
|
(13)
|
The
LT-R Interest is the sole residual interest in Lower-Tier REMIC.
It does
not have a principal amount or an interest rate.
|
On
each
Distribution Date, the Available Funds for Loan Group 1, Loan Group 2, Loan
Group 3, and Loan Group 4, as applicable, shall be distributed as interest
with
respect to the Lower-Tier Regular Interests related to such Loan Group based
on
the interest rates described above, adjusted to reflect any applicable Net
Interest Shortfalls for the related Loan Group for such Distribution
Date.
On
each
Distribution Date, the remaining Available Funds for Loan Group 1, Loan Group
2,
Loan Group 3, and Loan Group 4, as applicable, shall be distributed as principal
with respect to the Lower-Tier Regular Interests as follows:
(a) First,
from the remaining Available Funds for Loan Group 1, to
the LT-Group 1 SCA Interest until its principal balance equals one percent
of
the Subordinate Component for Loan Group 1 for the immediately succeeding
Distribution Date;
(b) Second,
from the remaining Available Funds for Loan Group 2, to
the LT-Group 2 SCA Interest until its principal balance equals one percent
of
the Subordinate Component for Loan Group 2 for the immediately succeeding
Distribution Date;
(c) Third,
from the remaining Available Funds for Loan Group 3, to
the LT-Group 3 SCA Interest until its principal balance equals one percent
of
the Subordinate Component for Loan Group 3 for the immediately succeeding
Distribution Date;
(d) Fourth,
from the remaining Available Funds for Loan Group 4, to
the LT-Group 4 SCA Interest until its principal balance equals one percent
of
the Subordinate Component for Loan Group 4 for the immediately succeeding
Distribution Date;
(e) Fifth,
to
LT-Group 1 SCA, LT-Group 2 SCA, LT-Group 3 SCA, and LT-Group 4 SCA Interests
from
the remaining Available Funds from the applicable Loan Group, the minimum amount
necessary to cause the ratio of the principal balance of such Lower-Tier Regular
Interest to the principal balance of each other such Lower-Tier Regular Interest
to equal the ratio of the Subordinate Component related to such Lower-Tier
Regular Interest to the Subordinate Component related to the other such
Lower-Tier Regular Interests, computed in each instance for the immediately
succeeding Distribution Date;
3
(f) Sixth,
from the remaining Available Funds, to the LT-Group 1 Interest until the sum
of
its balance and that of the LT-Group 1 SCA, after taking into account
distributions made pursuant to priorities (a) and (e) above for such
Distribution Date, equals the Loan Group Balance for Loan Group 1 for the
immediately succeeding Distribution Date;
(g) Seventh,
from the remaining Available Funds, to the LT-Group 2 Interest until the sum
of
its balance and that of the LT-Group 2 SCA, after taking into account
distributions made pursuant to priorities (b) and (e) above for such
Distribution Date, equals the Loan Group Balance for Loan Group 2 for the
immediately succeeding Distribution Date;
(h) Eighth,
from the remaining Available Funds, to the LT-Group 3 Interest until the sum
of
its balance and that of the LT-Group 3 SCA, after taking into account
distributions made pursuant to priorities (c) and (e) above for such
Distribution Date, equals the Loan Group Balance for Loan Group 3 for the
immediately succeeding Distribution Date;
(i) Ninth,
from the remaining Available Funds, to the LT-Group 4 Interest until the sum
of
its balance and that of the LT-Group 4 SCA, after taking into account
distributions made pursuant to priorities (d) and (e) above for such
Distribution Date, equals the Loan Group Balance for Loan Group 4 for the
immediately succeeding Distribution Date;
(j) Finally,
to the Class LT-R Interest.
On
each
Distribution Date, Realized Losses shall be allocated among the Lower Tier
Regular Interests in the same manner that principal is distributed among the
Lower Tier Regular Interests.
Middle-Tier
REMIC
The
following table specifies the designation, interest rate, initial principal
amount, and related Corresponding Class of Certificate for each Middle-Tier
Regular Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal
Amount
|
Corresponding
Class of
Certificate
|
|
MT-1A-1
|
(1)
|
(7)
|
Class
1A-1, Class A-R, Class 1-AX
|
|
MT-1A-2
|
(1)
|
(7)
|
Class
1A-2, Class 1-AX
|
|
MT-2A-1
|
(2)
|
(7)
|
Class
2A-1, Class 2-AX
|
|
MT-2A-2
|
(2)
|
(7)
|
Class
2A-2, Class 2-AX
|
|
MT-3A-1
|
(3)
|
(7)
|
Class
3A-1, Class 3-AX
|
|
MT-3A-2
|
(3)
|
(7)
|
Class
3A-2, Class 3-AX
|
|
MT-4A-1
|
(4)
|
(7)
|
Class
4A-1, Class 4-AX
|
|
MT-4A-2
|
(4)
|
(7)
|
Class
4A-2, Class 4-AX
|
|
MT-B-1
|
(5)
|
(7)
|
Class
B-1
|
4
|
Designation
|
Interest
Rate
|
Initial
Principal
Amount
|
Corresponding
Class of
Certificate |
|
MT-B-2
|
(5)
|
(7)
|
Class
B-2
|
|
MT-B-3
|
(5)
|
(7)
|
Class
B-3
|
|
MT-B-4
|
(5)
|
(7)
|
Class
B-4
|
|
MT-B-5
|
(5)
|
(7)
|
Class
B-5
|
|
MT-B-6
|
(5)
|
(7)
|
Class
B-6
|
|
MT-R
|
(6)
|
(6)
|
N/A
|
____________
|
(1)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Middle-Tier Regular Interests will be a per annum
rate
equal to the weighted average of the interest rates on the LT-Group
1 and
the LT-Group 1 SCA Interests in Lower-Tier REMIC for the related
Accrual
Period (adjusted to reflect any applicable Net Interest Shortfalls.
|
|
(2)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Middle-Tier Regular Interests will be a per annum
rate
equal to the weighted average of the interest rates on the LT-Group
2 and
the LT-Group 2 SCA Interests in Lower-Tier REMIC for the related
Accrual
Period (adjusted to reflect any applicable Net Interest
Shortfalls.
|
|
(3)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Middle-Tier Regular Interests will be a per annum
rate
equal to the weighted average of the interest rates on the LT-Group
3 and
the LT-Group 3 SCA Interests in Lower-Tier REMIC for the related
Accrual
Period (adjusted to reflect any applicable Net Interest Shortfalls).
|
|
(4)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Middle-Tier Regular Interests will be a per annum
rate
equal to the weighted average of the interest rates on the LT-Group
4 and
the LT-Group 4 SCA Interests in Lower-Tier REMIC for the related
Accrual
Period (adjusted to reflect any applicable Net Interest Shortfalls).
|
|
(5)
|
The
interest rate for any Distribution Date (and the related Accrual
Period)
for each of these Middle-Tier Regular Interests will be a per annum
rate
equal to the weighted average of the interest rates on the LT-Group
1 SCA,
LT-Group 2 SCA, LT-Group 3 SCA, and LT-Group 4 SCA Interests for
the
related Accrual Period (adjusted to reflect any applicable Net Interest
Shortfalls).
|
|
(6)
|
The
MT-R Interest is the sole residual interest in Middle-Tier REMIC.
It does
not have a principal amount or an interest rate.
|
|
(7)
|
The
initial principal amount for each of these Middle-Tier Regular Interests
will be an amount equal to the sum of the initial principal amounts
for
such Interest’s Corresponding Class of Certificates (other than any
interest-only certificates).
|
5
On
each
Distribution Date, amounts distributable on such Distribution Date with respect
to the Lower-Tier Regular Interests will be distributed as interest on the
Middle-Tier Regular Interests at the interest rates described above. Any
remaining amounts will be distributed, and Realized Losses shall be allocated,
with respect to the Middle-Tier Regular Interests until the principal amount
of
each such Middle-Tier Regular Interest equals the amount that will be the Class
Certificate Principal Balance of the Corresponding Class of Certificates
immediately after taking into account all distributions on such Distribution
Date.
Upper
Tier REMIC
The
following table sets forth (or describes) the Class designation, the Original
Class Certificate Principal Balance (or, in the case of the Interest-Only
Certificates, the Original Class Certificate Notional Balance) for each Class
of
Certificates constituting interests in the Trust Fund hereunder, each of which,
except for the Class A-R Certificate, is hereby designated a REMIC regular
interest in the Upper Tier REMIC for purposes of the REMIC
Provisions:
|
Class
|
Original
Class Certificate Principal Balance
or
Original Class
Certificate
Notional Balance
|
Pass-Through
Rate
|
|
Class
1A-1
|
$80,293,900.00
|
(1)
|
|
Class
1A-2
|
$8,921,000.00
|
(1)
|
|
Class
2A-1
|
$491,586,000.00
|
(1)
|
|
Class
2-A2
|
$54,620,000.00
|
(1)
|
|
Class
3A-1
|
$130,926,000.00
|
(1)
|
|
Class
3A-2
|
$14,547,000.00
|
(1)
|
|
Class
4A-1
|
$154,052,000.00
|
(1)
|
|
Class
4A-2
|
$17,117,000.00
|
(1)
|
|
Class
A-R
|
$100.00
|
(1)
|
|
Class
1-AX
|
$
(Notional
Balance) (2)
|
(1)
|
|
Class
2-AX
|
$
(Notional
Balance) (3)
|
(1)
|
|
Class
3-AX
|
$
(Notional
Balance) (4)
|
(1)
|
|
Class
4-AX
|
$
(Notional
Balance) (5)
|
(1)
|
|
Class
B-1
|
$13,885,000.00
|
(1)
|
|
Class
B-2
|
$7,934,000.00
|
(1)
|
|
Class
B-3
|
$3,471,000.00
|
(1)
|
6
|
Class
|
Original
Class Certificate Principal Balance
or
Original Class
Certificate
Notional Balance
|
Pass-Through
Rate
|
|
Class
B-4
|
$5,950,000.00
|
(1)
|
|
Class
B-5
|
$1,983,000.00
|
(1)
|
|
Class
B-6
|
$6,446,724.00
|
(1)
|
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(2)
|
The
Class Certificate Notional Balance of the Class 1-AX Certificates
is equal
to the sum of the Class Certificate Principal Balances of the Class
1A-1
and Class 1A-2 Certificates immediately preceding such Distribution
Date.
|
|
(3)
|
The
Class Certificate Notional Balance of the Class 2-AX Certificates
is equal
to the sum of the Class Certificate Principal Balances of the Class
2A-1
and Class 2A-2 Certificates immediately preceding such Distribution
Date.
|
|
(4)
|
The
Class Certificate Notional Balance of the Class 3-AX Certificates
is equal
to the sum of the Class Certificate Principal Balances of the Class
3A-1
and Class 3A-2 Certificates immediately preceding such Distribution
Date.
|
|
(5)
|
The
Class Certificate Notional Balance of the Class 4-AX Certificates
is equal
to the sum of the Class Certificate Principal Balances of the Class
4A-1
and Class 4A-2 Certificates immediately preceding such Distribution
Date.
|
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to a Servicer), or (y) as provided in
the
applicable Servicing Agreement, to the extent applicable to any Servicer, but
in
no event below the standard set forth in clause (x).
“Account”:
The
Distribution Account and each Servicing Account, as the context
requires.
7
“Accrual
Period”:
With
respect to each Distribution Date and any Class of Certificates and any Class
of
Lower-Tier Regular Interests, the calendar month prior to the month of such
Distribution Date. Interest will be calculated based upon a 360-day year
consisting of twelve 30-day months in each Accrual Period.
“Accrued
Interest Amount”:
For
any Distribution Date and for any Undercollateralized Group (other than any
Interest Only Certificate), an amount equal to one month’s interest on the
applicable Principal Deficiency Amount at the Net WAC of the applicable Loan
Group, plus
any
interest accrued on such Undercollateralized Group remaining unpaid from prior
Distribution Dates.
“Additional
Collateral”:
With
respect to any Additional Collateral Mortgage Loan, the marketable securities
or
other assets subject to a security interest pursuant to the related pledge
agreement.
“Additional
Collateral Mortgage Loan”:
Each
Mortgage Loan identified as such in the Mortgage Loan Schedule and as to which
Additional Collateral is then required to be provided as security
therefor.
“Additional
Disclosure Notification”:
As
defined in Section 3.19(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.19(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.19(b).
“Adjustable
Rate Mortgage Loans”:
The
Mortgage Loans identified as such and as set forth on Schedule I
hereto.
“Adjustment
Date”:
With
respect to each Mortgage Loan, each adjustment date on which the related Loan
Rate changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage
Loan Schedule.
“Advance”:
As to
any Mortgage Loan or REO Property, any advance made by the Master Servicer
(including the Trustee in its capacity as successor Master Servicer), as
successor servicer, in respect of any Distribution Date pursuant to Section
5.05.
“Adverse
REMIC Event”:
Either
(i)
the loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions and the tax imposed under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
8
“Aggregate
Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the aggregate of the Class Certificate Principal Balances of the
Classes of Subordinate Certificates and the denominator of which is the Pool
Balance for such Distribution Date.
“Agreement”:
This
Pooling and Servicing Agreement, dated as of February 1, 2008, as amended,
supplemented and otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
With
respect to the Subordinate Certificates, as defined in Section
5.01(e).
“Apportioned
Principal Balance”:
As to
any Class of Subordinate Certificates and any Distribution Date, the Class
Certificate Principal Balance of such Class immediately prior to such
Distribution Date multiplied by a fraction, the numerator of which is the
Subordinate Component for the related Loan Group for such date and the
denominator of which is the sum of the Subordinate Components (in the
aggregate).
“Assignment”:
As to
any Mortgage, an assignment of mortgage, notice of transfer or equivalent
instrument, in recordable form, which is sufficient, under the laws of the
jurisdiction in which the related Mortgaged Property is located, to reflect
or
record the sale of such Mortgage.
“Available
Funds”:
As to
any Distribution Date and any Loan Group, an amount equal to (i) the sum,
without duplication, of (a) the aggregate of the related Monthly Payments
received on or prior to the related Determination Date (excluding Monthly
Payments due in future Due Periods but received by the related Determination
Date) in respect of the Mortgage Loans in that Loan Group, (b) Net
Liquidation Proceeds, Insurance Proceeds, Principal Prepayments (but not
including Prepayment Penalty Amounts), Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans in that
Loan Group received during the related Prepayment Period, (c) the aggregate
of
any amounts received in respect of related REO Properties for such Distribution
Date, (d) the aggregate of any amounts of Interest Shortfalls (excluding
for such purpose all shortfalls as a result of Relief Act Reductions) paid
by
the Servicers pursuant to the related Servicing Agreements and Compensating
Interest Payments deposited in the Distribution Account for such Distribution
Date in respect of the Mortgage Loans in that Loan Group, (e) the aggregate
of the Purchase Prices, Substitution Adjustments and amounts collected for
purchases pursuant to Sections 2.03 or 3.25 deposited in the Distribution
Account during the related Prepayment Period in respect of the Mortgage Loans
in
that Loan Group, (f) the aggregate of any Advances (including, without
duplication, any Capitalization Reimbursement Amounts) made by the Servicers
and
the Master Servicer, as successor servicer, for such Distribution Date in
respect of the Mortgage Loans in that Loan Group, (g) the aggregate of any
Advances made by the Trustee (as successor Master Servicer) for such
Distribution Date pursuant to Section 7.02 hereof in respect of the Mortgage
Loans in that Loan Group, (h) the Termination Price allocated to such Loan
Group on the Distribution Date on which the Trust is terminated and (g) solely
as to the first Distribution Date, the Initial Deposit; minus
(ii) the sum of (w) the Expense Fees for such Distribution Date in
respect of the Mortgage Loans in that Loan Group, (x) amounts in reimbursement
for Advances previously made in respect of the Mortgage Loans in that Loan
Group
and other amounts as to which the Servicers, the Trustee, the Securities
Administrator and the Master Servicer are entitled to be reimbursed pursuant
to
Section 4.03, (y) the amount payable from funds of the Trust to the Trustee,
the
Master Servicer, the Custodian or the Securities Administrator pursuant to
Section 8.05, Section 3.30 and Section 3.31(c) in respect of Mortgage Loans
in
that Loan Group or if not related to a Mortgage Loan, allocated to each Loan
Group on a pro
rata
basis
and (z) amounts deposited in the Distribution Account in error, in respect
of
Mortgage Loans in that Loan Group, in each case without duplication.
9
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Base
Value”:
With
respect to any Mortgage Loan for which Additional Collateral has been pledged,
the value of the Additional Collateral as determined with respect to that
Mortgage Loan in accordance with the applicable underwriting
guidelines.
“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 6.02
hereof). On the Closing Date, all Classes of the Certificates other than the
Physical Certificates shall be Book-Entry Certificates.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of Minnesota, the State of Maryland, the State of
Illinois, the State of New York or in the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or executive
order to be closed.
“Capitalization
Reimbursement Amount”:
As to
any Distribution Date and with respect to any modified Mortgage Loans, the
sum
of the amounts, if any, of unreimbursed Advances that were added to the Stated
Principal Balances of such Mortgage Loans in connection with the related
modifications.
“Cenlar”:
Cenlar
FSB in its capacity as Sub-Servicer of the Mortgage Loans.
“Certificate”:
Any
Regular Certificate or Residual Certificate.
“Certificate
Group”:
Any of
Certificate Group 1, Certificate Group 2, Certificate Group 3 or Certificate
Group 4, as the context requires.
“Certificate
Group 1”:
At any
time, the Group 1 Certificates.
“Certificate
Group 2”:
At any
time, the Group 2 Certificates.
“Certificate
Group 3”:
At any
time, the Group 3 Certificates.
10
“Certificate
Group 4”:
At any
time, the Group 4 Certificates.
“Certificate
Notional Balance”:
With
respect to each Certificate of a given Class of Interest-Only Certificates
and
any date of determination, the product of (i) the Class Certificate Notional
Balance of such Class and (ii) the applicable Percentage Interest of such
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a given Class (other than Interest-Only
Certificates) and any date of determination, the product of (i) the Class
Certificate Principal Balance of such Class and (ii) the applicable Percentage
Interest of such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02
hereof.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a Holder
of a Residual Certificate for any purpose hereof.
“Certification
Parties”:
As
defined in Section 3.18.
“Certifying
Person”:
As
defined in Section 3.18.
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
1A-1 Certificate”:
Any of
the Class 1A-1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1A-2 Certificate”:
Any of
the Class 1A-2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
1-AX Certificate”:
Any of
the Class 1-AX Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
11
“Class
2A-1 Certificate”:
Any of
the Class 2A-1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2A-2 Certificate”:
Any of
the Class 2A-2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
2-AX Certificate”:
Any of
the Class 2-AX Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
3A-1 Certificate”:
Any of
the Class 3A-1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
3A-2 Certificate”:
Any of
the Class 3A-2 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
3-AX Certificate”:
Any of
the Class 3-AX Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
4A-1 Certificate”:
Any of
the Class 4A-1 Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
4A-2 Certificate”:
Any of
the Class 4A-2 Certificate as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
12
“Class
4-AX Certificate”:
Any of
the Class 4-AX Certificates as designated on the face thereof, executed by
the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and
therein.
“Class
A-R Certificate”:
The
Class A-R Certificate as designated on the face thereof, executed by the
Securities Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C, evidencing
the
ownership of the sole class of “residual interests” in the Upper Tier REMIC
created hereunder as well as ownership of the Class LT-R and Class MT-R
Interests and representing the right to distributions as set forth
herein.
“Class
B-1 Certificate”:
Any of
the Class B-1 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
B-2 Certificate”:
Any of
the Class B-2 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
B-3 Certificate”:
Any of
the Class B-3 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
B-4 Certificate”:
Any of
the Class B-4 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
B-5 Certificate”:
Any of
the Class B-5 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
“Class
B-6 Certificate”:
Any of
the Class B-6 Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit D, evidencing
the
ownership of a “regular interest” in the Upper Tier REMIC created hereunder and
representing the right to distributions as set forth herein and
therein.
13
“Class
Certificate Notional Balance”:
With
respect to the Class 1-AX Certificate and any Distribution Date up to and
including the Distribution Date in December 2010, the sum of the Class
Certificate Principal Balances of the Class 1A-1 and Class 1A-2 Certificates
before such Distribution Date; for any Distribution Date thereafter, zero.
With
respect to the Class 2-AX Certificate and any Distribution Date up to and
including the Distribution Date in January 2013, the sum of the Class
Certificate Principal Balances of the Class 2A-1 and Class 2A-2 Certificates
before such Distribution Date; for any Distribution Date thereafter, zero.
With
respect to the Class 3-AX Certificate and any Distribution Date up to and
including the Distribution Date in November 2014, the sum of the Class
Certificate Principal Balances of the Class 3A-1 and Class 3A-2 Certificates
before such Distribution Date; for any Distribution Date thereafter, zero.
With
respect to the Class 4-AX Certificate and any Distribution Date up to and
including the Distribution Date in November 2017, the sum of the Class
Certificate Principal Balances of the Class 4A-1 and Class 4A-2 Certificates
before such Distribution Date; for any Distribution Date thereafter, zero.
“Class
Certificate Principal Balance”:
As to
any Distribution Date, with respect to any Class of Certificates (other than
the
Interest-Only Certificates), the Original Class Certificate Principal Balance
as
reduced by the sum of (x) all amounts actually distributed in respect of
principal of that Class on all prior Distribution Dates, (y) all Realized
Losses, if any, actually allocated to that Class on all prior Distribution
Dates
and (z) in the case of the Subordinate Certificates, any applicable Writedown
Amount; provided,
however,
that
pursuant to Section 5.10, the Class Certificate Principal Balance of a Class
of
Certificates may be increased up to the amount of Realized Losses previously
allocated to such Class, in the event that there is a Recovery on a Mortgage
Loan, and the Certificate Principal Balance of any individual Certificate of
such Class shall be increased by its pro
rata
share of
the increase to such Class.
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
MT-R Interest”:
As
described in the Preliminary Statement.
“Class
Subordination Percentage”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
percentage equivalent of a fraction the numerator of which is the Class
Certificate Principal Balance of such Class immediately before such Distribution
Date and the denominator of which is the aggregate of the Class Certificate
Principal Balances of all Classes of Certificates immediately before such
Distribution Date.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
March
3, 2008.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
U.S.
Securities and Exchange Commission.
14
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an
amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all shortfalls
as
a result of Relief Act Reductions) required to be paid by the Servicers pursuant
to the related Servicing Agreement with respect to such Distribution Date,
exceeds (y) the aggregate amount actually paid by the Servicers in respect
of
such shortfalls; provided,
that
such amount, to the extent payable by the Master Servicer, shall not exceed
the
aggregate Master Servicing Fee that would be payable to the Master Servicer
in
respect of such Distribution Date without giving effect to any Compensating
Interest Payment.
“Converted
Mortgage Loan”:
Any
Mortgage Loan as to which the Mortgagor thereunder has exercised its right
under
the related Mortgage Note to convert the adjustable Loan Rate thereon to a
fixed
Loan Rate.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original or a copy of the executed Security Agreement and the
assignment of the Security Agreement in blank; (iii) the original or a copy
of
the executed Proprietary Lease and the original assignment of the Proprietary
Lease endorsed in blank; (iv) the original, if available, or a copy of the
executed Recognition Agreement and, if available, the original assignment of
the
Recognition Agreement (or a blanket assignment of all Recognition Agreements)
endorsed in blank; (v) the UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) UCC
Amendments (or copies thereof) or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at 000 Xxxxx XxXxxxx Xxxxxx, Mail Code
IL4-135-15-11, Xxxxxxx, XX 00000, Attention: Global Securities and Trust
Services, Xxxxxxxxx 0000-0, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor
and the Seller. With respect to the Securities Administrator and the Certificate
Registrar and (i) presentment of Certificates for registration of transfer,
exchange or final payment, Xxxxx Fargo Bank, National Association, Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services, Xxxxxxxxx Mortgage Securities Trust 2008-1, and (ii) for all other
purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Client Services
Manager, Xxxxxxxxx Mortgage Securities Trust 2008-1.
15
“Correspondent
Sellers Guide”:
The
Seller’s Correspondent Sellers Guide, revised July 23, 2007, effective July 30,
2007 and as revised and/or amended from time to time.
“Corresponding
Class”:
With
respect to each Middle-Tier Regular Interest, the Class or Classes of
Certificate corresponding to such Class as set forth in the Preliminary
Statement.
“Custodian”:
LaSalle Bank National Association, and its successors acting as custodian of
the
Mortgage Files.
“Cut-Off
Date”:
With
respect to any Mortgage Loan other than a Qualified Substitute Mortgage Loan,
the Close of Business in New York City on February 1, 2008 or March 1, 2008,
as
applicable. With respect to any Qualified Substitute Mortgage Loan, the date
designated as such on the Mortgage Loan Schedule (as amended).
“Cut-Off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-Off Date Principal Balances of the Mortgage Loans in each
Loan Group.
“Cut-Off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-Off Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or Section 6.02(d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made by the succeeding Due Date.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
16
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. 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(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the related Servicing Agreement, on which the related Servicer determines
the
amount of all funds required to be remitted to the Master Servicer on the
Servicer Remittance Date with respect to the Mortgage Loans it is servicing.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the
Code.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof which shall be entitled “Distribution Account,
Xxxxx Fargo Bank, N.A., as Securities Administrator for LaSalle Bank National
Association, as Trustee, in trust for the registered Holders of Xxxxxxxxx
Mortgage Securities Trust 2008-1, Mortgage Pass-Through Certificates, Series
2008-1” and which must be an Eligible Account.
“Distribution
Account Income”:
As to
any Distribution Date, any interest or other investment income earned on funds
deposited in the Distribution Account during the month of such Distribution
Date.
“Distribution
Date”:
The
25th day of the month, or, if such day is not a Business Day, the next Business
Day commencing in March 2008.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day of
the
month preceding the month in which such Distribution Date occurs and ending
on
the first day of the 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 short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term rating
category of each Rating Agency at the time any amounts are held on deposit
therein;
17
(ii) an
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iii) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
“Employee
Loan”:
Any
Mortgage Loan identified as such in the Mortgage Loan Schedule and which was
originated by the Seller, which provides for an increase in the Loan Rate
thereof in the event of the change of employment of the Mortgagor
thereunder.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of the Underwriter’s Exemption.
“ERISA-Restricted
Certificates”:
(i)
The Residual Certificate, the Class B-4, Class B-5 and Class B-6 Certificates,
(ii) any Non-Offered Certificate until it has been subject to an
ERISA-Qualifying Underwriting and (iii) any Certificate that does not satisfy
the applicable rating requirement under the Underwriter’s
Exemption.
“Escrow
Payments”:
The
amounts constituting ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums and other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan.
“Event
of Default”:
In
respect of the Master Servicer, one or more of the events (howsoever described)
set forth in Section 7.01 hereof as an event or events upon the occurrence
and
continuation of which the Master Servicer may be terminated.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended.
“Expense
Fee”:
With
respect to any Mortgage Loan, the sum of (w) the Retained Interest, if any,
(x)
the Master Servicing Fee and (y) the related Servicing Fee with respect to
the
related Servicer.
“Expense
Fee Rate”:
With
respect to any Mortgage Loan, the per annum rate at which the Expense Fee
accrues for such Mortgage Loan as set forth in the Mortgage Loan
Schedule.
“Xxxxxx
Xxx”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
18
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or
contemplated by Section 2.03, 3.25 and 10.01), a determination made by the
related Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which it expects to be finally recoverable in respect
thereof have been so recovered.
“Fitch”:
Fitch
Ratings, Inc.
“Five-Year
Hybrid Mortgage Loans”:
The
Mortgage Loans identified as such and as set forth on Schedule II
hereto.
“Form
8-K Disclosure Information”:
As
defined in Section 3.19(c).
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Group
1 Certificates”:
The
Class 1A-1 Certificates, Class 1A-2 Certificates, Class 1-AX Certificates and
Class A-R Certificates.
“Group
1 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
2 Certificates”:
The
Class 2A-1 Certificates, Class 2A-2 Certificates and Class 2-AX
Certificates.
“Group
2 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
3 Certificates”:
The
Class 3A-1 Certificates, Class 3A-2 Certificates and Class 3-AX
Certificates.
“Group
3 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
4 Certificates”:
The
Class 4A-1 Certificates, Class 4A-2 Certificates and Class 4-AX
Certificates.
“Group
4 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Seller, the Depositor and the Securities
Administrator (in all capacities hereunder) and their officers, directors,
agents and employees and, with respect to the Trustee, any separate co-trustee
and its officers, directors, agents and employees.
19
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01 of the Securities and Exchange Commission’ Regulation S-X.
When used with respect to any other specified Person, any such Person who (a)
is
in fact independent of the Depositor and its Affiliates, (b) does not have
any
direct financial interest in or any material indirect financial interest in
the
Depositor or any Affiliate thereof, (c) is not connected with the Depositor
or
any Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not a member
of the immediate family of a Person defined in clause (b) or (c)
above.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Notional Balance”:
With
respect to any Interest-Only Certificates, the amount designated “Initial
Certificates Notional Balance” on the face thereof.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate other than the Interest-Only Certificates, the amount
designated “Initial Certificate Principal Balance” on the face
thereof.
“Initial
Deposit”:
In
respect of all Mortgage Loans with a first payment Due Date after March 1,
2008,
an amount equal to $423,480.00.
“Initial
Loan Group 1 Balance”:
$92,932,253.37.
“Initial
Loan Group 2 Balance”:
$568,964,345.17.
“Initial
Loan Group 3 Balance”:
$151,534,894.32.
“Initial
Loan Group 4 Balance”:
$178,301,231.42.
“Initial
Purchaser”:
Greenwich Capital Markets, Inc.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the related Servicing
Agreement.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates, the sum of
(i) the Monthly Interest Distributable Amount for that Class and
(ii) the Unpaid Interest Shortfall Amount for that Class.
“Interest-Only
Certificates”:
Any of
the Class 1-AX, Class 2-AX, Class 3-AX and Class 4-AX Certificates.
20
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act, an amount determined as
follows:
(a) Principal
Prepayments in part received during the relevant Prepayment Period: the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the amount of such prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Net Loan Rate) received
at
the time of such prepayment; and
(b) Principal
Prepayments in full received during the relevant Prepayment Period: the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) received at the time
of
such prepayment; and
(c) any
Relief Act Reductions for such Distribution Date.
“Item
1122 Responsible Party”:
As
defined in Section 3.22.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-Off Date, the Distribution Date following the fifth
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-Off Date.
“Liquidated
Mortgage Loan”:
As to
any Distribution Date, any Mortgage Loan in respect of which the related
Servicer or the Master Servicer has determined, in accordance with the servicing
procedures specified herein, as of the end of the related Prepayment Period,
that all Liquidation Proceeds that it expects to recover with respect to the
liquidation of such Mortgage Loan or disposition of the related REO Property
have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the related
Servicing Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicers,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
related Servicer as proceeds from the liquidation of such Mortgage Loan, as
determined in accordance with the applicable provisions of the related Servicing
Agreement, other than Recoveries; provided
that (i)
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the related Servicing Agreement, “Liquidation Proceeds” shall also
include amounts realized in connection with such repurchase, substitution or
sale and (ii) with respect to a defaulted Additional Collateral Mortgage Loan,
“Liquidation Proceeds” shall also include the amount realized on the related
Additional Collateral.
21
“Loan
Group”:
Any of
Loan Group 1, Loan Group 2, Loan Group 3 or Loan Group 4, as the context
requires.
“Loan
Group Balance”:
As to
each Loan Group and any Distribution Date, the aggregate of the Stated Principal
Balances, as of the Close of Business on the first day of the month preceding
the month in which such Distribution Date occurs, of the Mortgage Loans in
such
Loan Group that were Outstanding Mortgage Loans on such date.
“Loan
Group 1”:
At any
time, the Group 1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 2”:
At any
time, the Group 2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 3”:
At any
time, the Group 3 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 4”:
At any
time, the Group 4 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Rate”:
With
respect to each 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.
“Loan-to-Collateral
Value Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination less the Base Value of any
related Additional Collateral and the denominator of which is the Value of
the
related Mortgaged Property.
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
lost or destroyed and has not been replaced, an affidavit from the Seller
certifying that the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying the Trust
against any loss, cost or liability resulting from the failure to deliver the
original Mortgage Note) in the form of Exhibit H hereto.
22
“Lower-Tier
Regular Interest”:
As
described in the Preliminary Statement.
“Lower
Tier REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
As to
any Distribution Date and each related Mortgage Loan, an amount equal to the
product of the applicable Master Servicing Fee Rate and the outstanding
Principal Balance of such Mortgage Loan as of the first day of the related
Due
Period. The Master Servicing Fee for any Mortgage Loan shall be payable in
respect of any Distribution Date solely from the interest portion of the Monthly
Payment or other payment or recovery with respect to such Mortgage
Loan.
“Master
Servicing Fee Rate”:
0.010%
per annum.
“Master
Servicing Guide”:
Xxxxx
Fargo Conduit and Norwest Conduit Servicing Guide, dated January 1997, as
amended from time to time.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“Middle
Tier Regular Interest”:
As
described in the Preliminary Statement.
“Middle
Tier REMIC”:
As
described in the Preliminary Statement.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“Modifiable
Mortgage Loan”:
Any
Mortgage Loan which, at the option of the Mortgagor and in accordance with
the
terms of the related Mortgage Note, may have the related Mortgage Rate modified
to any adjustable rate or hybrid product offered at the time by the related
originator.
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
23
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates and any Distribution Date, the amount
of
interest accrued during the related Accrual Period at the related Pass-Through
Rate on the Class Certificate Principal Balance or Class Certificate Notional
Balance, as applicable, of that Class immediately prior to such Distribution
Date.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and/or
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to (i) any Debt Service Reduction and
(ii) any reduction in the amount of interest collectible from the related
Mortgagor pursuant to the Relief Act; (b) without giving effect to any extension
granted or agreed to by the related Servicer pursuant to the applicable
provisions of the related Servicing Agreement; and (c) on the assumption that
all other amounts, if any, due under such Mortgage Loan are paid when
due.
“Xxxxx’x”:
Not
applicable.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or first
priority security interest in, a Mortgaged 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 required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of February 1, 2008, regarding the transfer of the Mortgage Loans by the Seller
to or at the direction of the Depositor.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to each
Mortgage Loan:
|
(i)
|
the
Mortgage Loan identifying number;
|
|
(ii)
|
the
Mortgagor’s name;
|
|
(iii)
|
the
street address of the Mortgaged Property including the state and
five-digit ZIP code;
|
|
(iv)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
24
|
(v)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit, (d)
a two-
to four-unit residential property, (e) a townhouse, (f) a cooperative
or
(g) other type of Residential
Dwelling;
|
|
(vi)
|
if
the related Mortgage Note permits the borrower to make Monthly Payments
of
interest-only for a specified period of time, (a) the original number
of
such specified Monthly Payments and (b) the remaining number of such
Monthly Payments as of the Cut-Off
Date;
|
|
(vii)
|
the
original months to maturity;
|
|
(viii)
|
the
stated remaining months to maturity from the Cut-Off Date based on
the
original amortization schedule;
|
|
(ix)
|
the
Loan-to-Value Ratio at origination;
|
|
(x)
|
the
value of any Additional Collateral at
origination;
|
|
(xi)
|
the
Loan-to-Collateral Value Ratio at
origination;
|
|
(xii)
|
the
Loan Rate in effect immediately following the Cut-Off
Date;
|
|
(xiii)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xiv)
|
the
stated maturity date;
|
|
(xv)
|
the
Master Servicing Fee Rate and the Servicing Fee Rate, if
any;
|
|
(xvi)
|
whether
such loan is an Additional Collateral Mortgage Loan or an Employee
Loan;
|
|
(xvii)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xviii)
|
the
original principal balance of the Mortgage
Loan;
|
|
(xix)
|
the
Stated Principal Balance of the Mortgage Loan on the Cut-Off Date
and a
code indicating the purpose of the Mortgage Loan (i.e.,
purchase
financing, rate/term refinancing, cash-out
refinancing);
|
|
(xx)
|
the
Index and Gross Margin specified in related Mortgage
Note;
|
|
(xxi)
|
the
next Adjustment Date, if
applicable;
|
|
(xxii)
|
the
Maximum Loan Rate, if applicable;
|
25
|
(xxiii)
|
the
Value of the Mortgaged Property;
|
|
(xxiv)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xxv)
|
the
product code;
|
|
(xxvi)
|
Expense
Fee Rate therefor;
|
|
(xxvii)
|
the
Servicer that is servicing such Mortgage Loan and the originator
of such
Mortgage Loan;
|
|
(xxviii)
|
whether
the Mortgage Loan is subject to a prepayment penalty, the prepayment
penalty term and the method of calculation of the penalty amount;
and
|
|
(xxix)
|
the
respective Loan Group.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee (or Master
Servicer) shall not disclose such information except to the extent disclosure
may be required by any law or regulatory or administrative authority;
provided,
however,
that the
Trustee may disclose on a confidential basis any such information to its agents,
attorneys and any auditors in connection with the performance of its
responsibilities hereunder.
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate and
by
Loan Group as of the Cut-Off Date: (1) the number of Mortgage Loans;
(2) the current Principal Balance of the Mortgage Loans; (3) the
weighted average Loan Rate of the Mortgage Loans; and (4) the weighted
average remaining months to maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Seller in accordance with
the
provisions of this Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfall, if
any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicers under the related Servicing Agreements with respect to such
Distribution Date and (ii) Compensating Interest Payments made with respect
to
such Distribution Date.
26
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, related Servicing Advances, Master Servicing Fee, related Servicing
Fees and any other accrued and unpaid servicing fees received and retained
in
connection with the liquidation of such Mortgage Loan or Mortgaged Property,
and
any related Retained Interest.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Loan
Rate for such Mortgage Loan minus
the
related Servicing Fee Rate, Master Servicing Fee Rate and Retained Rate, if
any.
“Net
WAC”:
With
respect to each Loan Group and any Distribution Date, the weighted average
of
the Net Loan Rates of the Mortgage Loans in that Loan Group, as of the first
day
of the related Due Period (or, in the case of the first Distribution Date,
as of
the Cut-Off Date), weighted on the basis of their related Stated Principal
Balances as of the first day of the related Due Period (or, in the case of
the
first Distribution Date, as of the Cut-off Date).
“Non-Offered
Certificates”:
The
Class 1A-2, Class 1-AX, Class 2A-2, Class 2-AX, Class 3A-2, Class 3-AX, Class
4A-2, Class 4-AX, Class B-1, Class B-2 and Class B-3 Certificates.
“Nonrecoverable”:
The
determination by the Master Servicer, as successor servicer, or the related
Servicer in respect of a delinquent Mortgage Loan that if it were to make an
Advance in respect of thereof, such amount would not be recoverable from any
collections or other recoveries (including Liquidation Proceeds) on such
Mortgage Loan.
“Notional
Certificate”:
Any
Class of Interest-Only Certificates.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“One-Month
LIBOR”:
The
average of interbank offered rates for one month U.S. dollar deposits in the
London market based on quotations of major banks.
“One-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Month LIBOR index.
“One-Year
CMT”:
The
weekly average yield on United States Treasury securities adjusted to a constant
maturity of one year as published by the Federal Reserve Board in Statistical
Release H.15(519).
“One-Year
CMT Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Year CMT Index.
27
“One-Year
LIBOR”:
The
average of interbank offered rates for one-year U.S. dollar deposits in the
London market based on quotations of major banks.
“One-Year
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Year LIBOR index.
“One-Year MTA”:
The
twelve-month average yields on United States Treasury securities adjusted to
a
constant maturity of one year as published by the Federal Reserve Board in
Statistical Release H.15(519).
“One-Year MTA
Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the One-Year MTA index.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee or the Securities
Administrator, as applicable, except that any opinion of counsel relating to
(a)
the qualification of any REMIC created hereunder as a REMIC or (b) compliance
with the REMIC Provisions must be an opinion of Independent
counsel.
“Optional
Securities Purchase Date”:
The
first Distribution Date or thereafter that the aggregate Stated Principal
Balance of the Mortgage Loans as of the end of the immediately preceding Due
Period is equal to or less than 20% of the Cut-off Date Aggregate Principal
Balance.
“Optional
Securities Purchase Right”:
The
right of TMI to purchase the outstanding Certificates in accordance with Section
6.06.
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
|
Class
B-1
|
4.00%
|
|
Class
B-2
|
2.60%
|
|
Class
B-3
|
1.80%
|
|
Class
B-4
|
1.45%
|
|
Class
B-5
|
0.85%
|
|
Class
B-6
|
0.65%
|
“Original
Class Certificate Notional Balance”:
With
respect to each Class of Interest-Only Certificates, the corresponding Class
Certificate Notional Balance set forth opposite the Class designation in the
Preliminary Statement.
“Original
Class Certificate Principal Balance”:
With
respect to each Class of Certificates (other than the Interest-Only
Certificates), the corresponding Class Certificate Principal Balance set forth
opposite the Class designation of such Class in the Preliminary Statement.
28
“Original
Subordinated Principal Balance”:
The
aggregate of the Original Class Certificate Principal Balances of the Classes
of
Subordinate Certificates.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security 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, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates and each Accrual Period related to any
Distribution Date, the rate set forth below:
|
(i)
|
Up
to and including the Distribution Date in December 2010, the Pass-Through
Rate for the Class 1A-1 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 5.2130% and (ii) the Net WAC
for Loan
Group 1. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 1-A1 Certificates shall be equal to the Net WAC for Loan
Group
1.
|
|
(ii)
|
Up
to and including the Distribution Date in December 2010, the Pass-Through
Rate for the Class 1A-2 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 6.2410% and (ii) the Net WAC
for Loan
Group 1. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 1-A2 Certificates shall be equal to the Net WAC for Loan
Group
1.
|
|
(iii)
|
Up
to and including the Distribution Date in December 2010, the Pass-Through
Rate for the Class 1-AX Certificates with respect to any Distribution
Date
shall be equal to the excess of (i) the Net WAC for Loan Group 1
and (ii)
the weighted average of the Pass-Through Rates for the Class 1A-1
and
Class 1A-2 Certificates. For any Distribution Date thereafter, the
Pass-Through Rate of the Class 1-AX Certificates shall equal
zero.
|
|
(iv)
|
Up
to and including the Distribution Date in January 2013, the Pass-Through
Rate for the Class 2A-1 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 5.5158% and (ii) the Net WAC
for Loan
Group 2. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 2-A1 Certificates shall be equal to the Net WAC for Loan
Group
2.
|
|
(v)
|
Up
to and including the Distribution Date in January 2013, the Pass-Through
Rate for the Class 2A-2 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 6.3950% and (ii) the Net WAC
for Loan
Group 2. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 2-A2 Certificates shall be equal to the Net WAC for Loan
Group
2.
|
29
|
(vi)
|
Up
to and including the Distribution Date in January 2013, the Pass-Through
Rate for the Class 2-AX Certificates with respect to any Distribution
Date
shall be equal to the excess of (i) the Net WAC for Loan Group 2
and (ii)
the weighted average of the Pass-Through Rates for the Class 2A-1
and
Class 2A-2 Certificates. For any Distribution Date thereafter, the
Pass-Through Rate of the Class 2-AX Certificates shall equal
zero.
|
|
(vii)
|
Up
to and including the Distribution Date in November 2014, the Pass-Through
Rate for the Class 3A-1 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 5.7760% and (ii) the Net WAC
for Loan
Group 3. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 3-A1 Certificates shall be equal to the Net WAC for Loan
Group
3.
|
|
(viii)
|
Up
to and including the Distribution Date in November 2014, the Pass-Through
Rate for the Class 3A-2 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 6.4570% and (ii) the Net WAC
for Loan
Group 3. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 3-A2 Certificates shall be equal to the Net WAC for Loan
Group
3.
|
|
(ix)
|
Up
to and including the Distribution Date in November 2014, the Pass-Through
Rate for the Class 3-AX Certificates with respect to any Distribution
Date
shall be equal to the excess of (i) the Net WAC for Loan Group 3
and (ii)
the weighted average of the Pass-Through Rates for the Class 3A-1
and
Class 3A-2 Certificates. For any Distribution Date thereafter, the
Pass-Through Rate of the Class 3-AX Certificates shall equal
zero.
|
|
(x)
|
Up
to and including the Distribution Date in November 2017, the Pass-Through
Rate for the Class 4A-1 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 6.2570% and (ii) the Net WAC
for Loan
Group 4. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 4-A1 Certificates shall be equal to the Net WAC for Loan
Group
4.
|
|
(xi)
|
Up
to and including the Distribution Date in November 2017, the Pass-Through
Rate for the Class 4A-2 Certificates with respect to any Distribution
Date
shall be equal to the lesser of (i) 6.4320% and (ii) the Net WAC
for Loan
Group 4. For any Distribution Date thereafter, the Pass-Through Rate
for
the Class 4-A2 Certificates shall be equal to the Net WAC for Loan
Group
4.
|
30
|
(xii)
|
Up
to and including the Distribution Date in November 2017, the Pass-Through
Rate for the Class 4-AX Certificates with respect to any Distribution
Date
shall be equal to the excess of (i) the Net WAC for Loan Group 4
and (ii)
the weighted average of the Pass-Through Rates for the Class 4A-1
and
Class 4A-2 Certificates. For any Distribution Date thereafter, the
Pass-Through Rate of the Class 4-AX Certificates shall equal
zero.
|
|
(xiii)
|
The
Pass-Through Rate for the Class A-R Certificates with respect to
any
Distribution Date shall be equal to the Net WAC for Loan Group
1.
|
|
(xiv)
|
The
Pass-Through Rate for the Class B-1, Class B-2, Class B-3, Class
B-4,
Class B-5 and Class B-6 Certificates with respect to any Distribution
Date
shall be equal to the Subordinate Certificate Pass-Through
Rate.
|
“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate other than a Residual Certificate, a fraction,
expressed as a percentage, the numerator of which is the Initial Certificate
Principal Balance or Initial Certificate Notional Balance, as applicable,
represented by such Certificate and the denominator of which is the Original
Class Certificate Principal Balance or Original Class Certificate Notional
Balance, as applicable, of the related Class. With respect to the Residual
Certificate, 100%.
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by the
Depositor, the Master Servicer, the Trustee or any of their respective
Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or the Master Servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, so long as, at the time of
such
investment or contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has a short-term
uninsured debt rating in one of the two highest available rating categories
of
each Rating Agency and (B) any other demand or time deposit or deposit which
is
fully insured by the FDIC;
31
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by the Rating Agencies;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of
Columbia or any State thereof and that are rated by each Rating Agency in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the Investment
Company Act of 1940 including funds managed or advised by the Trustee, the
Master Servicer or an affiliate thereof having the highest applicable rating
from each Rating Agency rating such investment; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each Rating Agency in writing as a permitted
investment of funds backing securities having ratings equivalent to its highest
initial rating of the Senior Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or a
non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Physical
Certificates”:
The
Residual Certificates.
“Pool
Balance”:
As to
any Distribution Date, the aggregate of the Stated Principal Balances, as of
the
Close of Business on the first day of the month preceding the month in which
such Distribution Date occurs, of the Mortgage Loans in all Loan Groups that
were Outstanding Mortgage Loans on that day.
“Prepayment
Penalty Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a result
of full or partial Principal Prepayments collected by the applicable Servicer
during the immediately preceding Prepayment Period, but only to the extent
required to be remitted to the Master Servicer on the applicable Servicer
Remittance Date under the terms of the related Servicing Agreement and as
provided on the Mortgage Loan Schedule.
32
“Prepayment
Period”:
With
respect to any Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs.
“Primary
Insurance Policy”:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
“Principal
Balance”:
As to
any Mortgage Loan, other than a Liquidated Mortgage Loan, and any day, the
related Cut-Off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan after
the Cut-Off Date. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have a Principal Balance equal to the Principal Balance
of
the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. As to any REO Property
and
any day, the Principal Balance of the related Mortgage Loan immediately prior
to
such Mortgage Loan becoming REO Property.
“Principal
Deficiency Amount”:
For
any Distribution Date and for any Undercollateralized Group, the excess, if
any,
of the aggregate Class Certificate Principal Balance of such Undercollateralized
Group immediately prior to such Distribution Date over the sum of the Principal
Balances of the Mortgage Loans in the related Loan Group immediately prior
to
such Distribution Date.
“Principal
Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of (a) each
scheduled payment of principal collected or advanced on the related Mortgage
Loans by the related Servicer or the Master Servicer, as successor servicer,
in
respect of the related Due Period, (b) that portion of the Purchase Price,
representing principal of any repurchased or purchased Mortgage Loan in that
Loan Group, deposited to the Distribution Account during the related Prepayment
Period, (c) the principal portion of any related Substitution Adjustments
with respect to that Loan Group deposited in the Distribution Account during
the
related Prepayment Period, (d) the principal portion of all Insurance
Proceeds received during the related Prepayment Period with respect to Mortgage
Loans in that Loan Group that are not yet Liquidated Mortgage Loans,
(e) the principal portion of all Net Liquidation Proceeds received during
the related Prepayment Period with respect to Liquidated Mortgage Loans in
that
Loan Group (other than Recoveries), (f) all Principal Prepayments in part
or in full on Mortgage Loans in that Loan Group applied by the Servicers or
the
Master Servicer during the related Prepayment Period, (g) all Recoveries
received during the related Prepayment Period and (h) on the Distribution
Date on which the Trust is to be terminated pursuant to Section 10.01 hereof,
that portion of the Termination Price in respect of principal for that Loan
Group minus
any
Capitalization Reimbursement Amounts for that Distribution Date.
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
33
“Private
Certificates”:
Collectively, the Class B-4, Class B-5 and Class B-6 Certificates to be
privately offered by the Initial Purchaser through the Private Placement
Memorandum.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated March 3, 2008, relating to the Class B-4,
Class B-5 and Class B-6 Certificates.
“Pro
Rata
Share”:
As to
any Distribution Date and any Class of Subordinate Certificates, the portion
of
the Subordinate Principal Distribution Amount allocable to such Class, equal
to
the product of the (a) Subordinate Principal Distribution Amount on such date
and (b) a fraction, the numerator of which is the related Class Certificate
Principal Balance of that Class and the denominator of which is the aggregate
of
the Class Certificate Principal Balances of all the Classes of Subordinate
Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Prospectus Supplement, together with the accompanying prospectus, dated July
30,
2007.
“Prospectus
Supplement”:
That
certain Prospectus Supplement dated March 2, 2008, as supplemented by the
supplement dated March 3, 2008, relating to the initial offering and sale of
the
Class 1A-1, Class 2A-1, Class 3A-1, Class 4A-1 and Class A-R Certificates by
Greenwich Capital Markets, Inc., Bear, Xxxxxxx & Co. Inc. and Credit Suisse
Securities (USA) LLC.
“Purchase
Account”:
The
account created and maintained by the Securities Administrator pursuant to
Section 6.06 hereof.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03, Section 3.25 or Section 10.01 hereof, and as
confirmed by an Officers’ Certificate from the Seller to the Trustee, an amount
equal to the sum of (i) 100% of the Principal Balance thereof as of the
date of purchase (or such other price as is provided in Section 10.01),
plus
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Principal Balance at the applicable Loan Rate from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an Advance by a
Servicer or Master Servicer, as successor servicer, through the end of the
calendar month in which the purchase is to be effected, and (y) an REO
Property, the sum of (1) accrued interest on such Principal Balance at the
applicable Loan Rate from the Due Date as to which interest was last covered
by
a payment by the Mortgagor or an Advance by a Servicer or Master Servicer,
as
successor servicer, plus
(2) 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 purchase is to be effected, net of the total of
all
net rental income, Insurance Proceeds, Liquidation Proceeds and Advances that as
of the date of purchase had been distributed as or to cover REO Imputed
Interest, plus
(iii) any unreimbursed Servicing Advances and any unpaid Expense Fees
allocable to such Mortgage Loan or REO Property, plus
(iv) in the case of a Mortgage Loan required to be purchased pursuant to
Section 2.03 hereof, any costs and damages incurred by the Trust in connection
with any violation by such Mortgage Loan of any predatory- or abusive-lending
laws.
34
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, so long as the claims paying ability of which
is
acceptable to each Rating Agency for pass-through certificates having the same
ratings as the Certificates rated by each Rating Agency as of the Closing Date.
Any replacement insurer with respect to a Mortgage Loan must have at least
as
high a claims paying ability rating as the insurer it replaces had on the
Closing Date.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 10% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
and a Loan-to-Collateral Value Ratio as of the date of substitution equal to
or
lower than the Loan-to-Value Ratio and the Loan-to-Collateral Value Ratio,
respectively, of the Deleted Mortgage Loan as of such date, (ix) have been
underwritten or re-underwritten in accordance with the same or substantially
similar underwriting criteria and guidelines as the Deleted Mortgage Loan,
(x)
is of the same or better credit quality as the Deleted Mortgage Loan and
(xi) conform to each representation and warranty set forth in Section 2.04
hereof applicable to the Deleted Mortgage Loan. In the event that one or more
mortgage loans are substituted for one or more Deleted Mortgage Loans, the
amounts described in clause (i) hereof shall be determined on the basis of
aggregate principal balances, the terms described in clause (vi) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratio and Loan-to-Collateral Value Ratio described in clause
(viii) hereof shall be satisfied as to each such mortgage loan and, except
to the extent otherwise provided in this sentence, the representations and
warranties described in clause (x) hereof must be satisfied as to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case may
be.
“Rating
Agency”:
Each
of Fitch and S&P and any respective successors thereto. If Fitch, S&P or
their respective successors shall no longer be in existence, “Rating Agency”
shall include such nationally recognized statistical rating agency or agencies,
or other comparable Person or Persons, as shall have been designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Master Servicer.
35
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Record
Date”:
With
respect to each Distribution Date and all Classes of Certificates, the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs, except as set forth in Section 6.06(c).
“Recovery”:
With
respect to any Distribution Date and a Mortgage Loan that became a Liquidated
Mortgage Loan in a month preceding the related Prepayment Period to such
Distribution Date and with respect to which the related Realized Loss was
allocated to one or more Classes of Certificates, an amount received in respect
of such Liquidated Mortgage Loan during the related Prepayment Period, net
of
any reimbursable expenses.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Class 1A-1, Class 1A-2, Class 2A-1, Class 2A-2, Class 3A-1, Class 3A-2, Class
4A-1 and Class 4A-2 Certificates, the Interest-Only Certificates and the
Subordinate Certificates.
“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 clarifications and interpretations 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.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit Q attached
hereto and any similar exhibit set forth in each Servicing Agreement in respect
of each Servicer. Multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant engaged
by
the Master Servicer, the Securities Administrator, the Trustee (in its capacity
as Custodian) or each Servicer, the term “Relevant Servicing Criteria” may refer
to a portion of the Relevant Servicing Criteria applicable to such
parties.
“Relief
Act”:
The
Servicemembers Civil Relief Act or similar state or local law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
36
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not cause an Adverse REMIC Event.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by a Servicer in respect of an REO Property
pursuant to the related Servicing Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the
Trust.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of the Trust Fund, one month’s interest at the applicable Net Loan
Rate on the 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 Due Date in such calendar month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the related Servicing Agreement in respect of the
proper operation, management and maintenance of such REO Property or (ii)
payable or reimbursable to the applicable Servicer pursuant to the applicable
provisions of the related Servicing Agreement for unpaid Master Servicing Fees
and Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO
Property for such calendar month.
37
“REO
Property”:
A
Mortgaged Property acquired by the applicable Servicer on behalf of the Trust
through foreclosure or deed-in-lieu of foreclosure in accordance with the
applicable provisions of the related Servicing Agreement.
“Reportable
Event”:
As
defined in Section 3.19(c).
“Reporting
Servicer”: As
defined in Section 3.19(b).
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Residential
Dwelling”:
Any
one of the following: (i) attached or detached one-family dwelling,
(ii) a detached two- to four-family dwelling, (iii) a one-family
dwelling unit in a condominium project, (iv) a manufactured home, (v) a
cooperative unit or (vi) an attached or detached one-family dwelling in a
planned unit development, none of which is a mobile home.
“Residual
Certificate”:
The
Class A-R Certificate.
“Responsible
Officer”:
When
used with respect to the Trustee or the Securities Administrator, any director,
any vice president, any assistant vice president, any associate assigned to
the
Corporate Trust Office (or similar group) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to whom such
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.
“Restricted
Classes”:
As
defined in Section 5.01(e).
“Restricted
Global Security”:
As
defined in Section 6.01.
“Retained
Interest”:
As to
any Employee Loans originated by Xxxxxxxxx and each Distribution Date, interest
accrued on the Principal Balance thereof at the Retained Rate.
“Retained
Interest Holder”:
With
respect to each Employee Loan, the Seller or any successor in interest by
assignment or otherwise.
“Retained
Rate”:
As of
the Cut-off Date, and for each Due Period thereafter, 0.00% per annum;
provided,
however,
if the
related Mortgagor of the Employee Loan ceases to be an employee or a director
of
Xxxxxxxxx or its Affiliates, the amount of the increase in the per annum rate
set forth in the related Mortgage Note.
“S&P”:
Standard & Poor’s Rating Services (a division of The XxXxxx-Xxxx Companies,
Inc.).
“Sarbanes
Oxley Act”:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
38
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification covering the activities of all Servicing Function
Participants (excluding the Custodian) and the Servicers and signed by an
officer of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act
of
2002, as amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and
15d-14(d), as in effect from time to time; provided that if, after the Closing
Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the Rules referred
to in
clause (ii) are modified or superseded by any subsequent statement, rule or
regulation of the Commission or any statement of a division thereof, or (c)
any
future releases, rules and regulations are published by the Securities and
Exchange Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act of
2002, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer, the Depositor and the Seller
following a negotiation in good faith to determine how to comply with any such
new requirements.
“Securities
Act”:
The
Securities Act of 1933, as amended and the rules and regulations
thereunder.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A., or its successor in interest, or any successor securities
administrator appointed as herein provided.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
“Seller”:
Xxxxxxxxx, in its capacity as seller under this Agreement.
“Senior
Certificate”:
One of
the Class 1A-1, Class 1A-2, Class 2A-1, Class 2A-2, Class 3A-1, Class 3A-2,
Class 4A-1, Class 4A-2, Class A-R, Class 1-AX, Class 2-AX, Class 3-AX and Class
4-AX Certificates.
“Senior
Certificate Group”:
Any of
(a) the Class 1A-1, Class 1A-2, Class 1-AX and Class A-R Certificates with
respect to Loan Group 1, (b) the Class 2A-1, Class 2A-2 and Class 2-AX
Certificates with respect to Loan Group 2, (c) the Class 3A-1, Class 3A-2 and
Class 3-AX Certificates with respect to Loan Group 3 and (d) the Class 4A-1,
Class 4A-2 and Class 4-AX Certificates with respect to Loan Group
4.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Certificate Principal Balance of each Class of
Subordinate Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to each Loan Group and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the aggregate of the Class Certificate
Principal Balances of the Senior Certificate Group relating to that Loan Group
immediately prior to such Distribution Date and the denominator of which is
the
Loan Group Balance of the related Loan Group for such Distribution Date;
provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to a Loan Group, the Senior Percentage for that Loan Group will be equal to
0%
and; provided,
further, that
on
any Distribution Date after a Senior Termination Date has occurred with respect
to two or more Loan Groups, the Senior Percentage of the remaining Senior
Certificates is the percentage equivalent of a fraction, the numerator of which
is the aggregate of the Certificate Principal Balances of remaining Classes
of
Senior Certificates immediately prior to such date and the denominator of which
is the aggregate of the Certificate Principal Balances of all Classes of
Certificates immediately prior to such date.
39
“Senior
Prepayment Percentage”:
With
respect to each Loan Group any Distribution Date before March 2015, 100%. Except
as provided herein, the Senior Prepayment Percentage for each of Loan Group
for
any Distribution Date occurring on or after March 2015 as follows: (i) from
March 2015 through February 2016, the related Senior Percentage plus 70% of
the
related Subordinate Percentage for such Distribution Date; (ii) from March
2016 through February 2017, the related Senior Percentage plus 60% of the
related Subordinate Percentage for such Distribution Date; (iii) from March
2017 through February 2018, the related Senior Percentage plus 40% of the
related Subordinate Percentage for such Distribution Date; (iv) from March
2018 through
February 2019, the related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and (v) from and after March 2019,
the related Senior Percentage for such Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage for any such
Loan Group on a Distribution Date, unless the Step Down Conditions are satisfied
with respect to such Distribution Date; and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in March
2015, the Senior Percentage for any Loan Group exceeds the initial Senior
Percentage for such Loan Group, the related Senior Prepayment Percentage for
such Distribution Date will again equal 100%.
Notwithstanding
the above, (i) if on any Distribution Date prior to March 2011 the Two Times
Test is satisfied, the Senior Prepayment Percentage for each Loan Group will
equal the related Senior Percentage for such Distribution Date plus 50% of
an
amount equal to 100% minus the related Senior Percentage for such Distribution
Date and (ii) if
on any
Distribution Date in or after March 2011 the Two Times Test is satisfied, the
Senior Prepayment Percentage for each Loan Group will equal the related Senior
Percentage for such Distribution Date.
“Senior
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of:
(1) the
related Senior Percentage of all amounts described in clauses (a) through (d)
of
the definition of “Principal Distribution Amount” for such Distribution
Date;
(2) with
respect to each Mortgage Loan in that Loan Group which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
|
(x)
|
the
related Senior Percentage of the Stated Principal Balance of that
Mortgage
Loan; and
|
40
|
(y)
|
the
related Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received with respect to that Mortgage
Loan; and
|
(3) the
related Senior Prepayment Percentage of the amounts described in clause (f)
of
the definition of “Principal Distribution Amount;”
provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to two or more Loan Groups, the Senior Principal Distribution Amount for the
remaining Senior Certificate Group will be calculated pursuant to the above
formula based on all the Mortgage Loans rather than the Mortgage Loans in the
related Loan Group only.
“Senior
Termination Date”:
For
each Loan Group, the Distribution Date on which the aggregate of the Class
Certificate Principal Balances of the Senior Certificate Group relating to
that
Loan Group is reduced to zero.
“Servicer”:
Each
of the several primary servicers of the Mortgage Loans as set forth and as
individually defined in Exhibit N hereto and any successors thereto or
replacement therefor.
“Servicer
Remittance Date”:
With
respect to each Mortgage Loan, the 18th day of each month, or the next Business
Day if such 18th day is not a Business Day or if provided in the related
Servicing Agreement, the preceding Business Day if such 18th
day is
not a Business Day.
“Service(s)(ing)”:
In
accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. Any
uncapitalized occurrence of this term shall have the meaning commonly understood
by participants in the residential mortgage-backed securitization
market.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Master Servicer or
the
Trust by a Servicer with respect to the related Mortgage Loans and any REO
Property, pursuant to the terms of the respective Servicing
Agreement.
“Servicing
Advances”:
With
respect to any Servicer or the Master Servicer (including the Trustee in its
capacity as successor Master Servicer), all customary, reasonable and necessary
“out of pocket” costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by any Servicer or the Master Servicer, as successor
servicer, in the performance of its servicing obligations hereunder, including,
but not limited to, the cost of (i) the preservation, restoration, inspection
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of
the
REO Property and (iv) compliance with the obligations under Article III hereof
or the related Servicing Agreements.
“Servicing
Agreement”:
The
servicing agreements relating to the Mortgage Loans as set forth in Exhibit
N
hereto, servicing arrangements for any Mortgage Loans under the Seller’s
Correspondent Sellers Guide, and any other servicing agreement entered into
between a successor servicer and the Seller or the Trustee on behalf of the
Trust pursuant to the terms hereof.
41
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to each Servicer and each Mortgage Loan serviced by such Servicer and
for any calendar month, the fee payable to such Servicer determined pursuant
to
the related Servicing Agreement.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum servicing fee rate set forth on
the
Mortgage Loan Schedule.
“Servicing
Function Participant”:
Any
Sub-Servicer or Subcontractor, other than each Servicer, the Master Servicer,
the Trustee, the Custodian and the Securities Administrator, in each case that
is participating in the servicing function within the meaning of Regulation
AB.
“Servicing
Officer”: Any
officer of a Master Servicer or Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer to the Trustee and the Depositor on the Closing Date, as such list
may
from time to time be amended.
“Seven-Year
Hybrid Mortgage Loans”:
The
Mortgage Loans set forth on Schedule III hereto.
“Significant
Modification”:
As
defined in Section 3.25.
“Significant
Modification Loan”:
As
defined in Section 3.25.
“Significant
Modification Loan Schedule”:
With
respect to each Distribution Date, a schedule prepared by the Seller pursuant
to
Section 3.25 listing each Modifiable Mortgage Loan that has become a Significant
Modification Loan during the immediately preceding Due Period, and the Purchase
Price for each such Significant Modification Mortgage Loan.
“Six-Month
LIBOR”:
The
average of interbank offered rates for six-month U.S. dollar deposits in the
London market based on quotations of major banks.
“Six-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the Six-Month LIBOR index.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in March 2008,
the
Cut-Off Date Principal Balance of such Mortgage Loan, (b) thereafter as of
any date of determination up to and including the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-Off Date, as shown in the Mortgage Loan Schedule, minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date, whether or
not
received, (ii) all Principal Prepayments received after the Cut-Off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the applicable Servicer as recoveries of principal in accordance
with
the applicable provisions of the related Servicing Agreement, to the extent
distributed pursuant to Section 5.01 before such date of determination; and
(c) as of any date of determination subsequent to the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan would be distributed, zero. With respect to any REO Property: (x) as
of any date of determination up to and including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, an amount (not less than zero) equal to the Stated
Principal Balance of the related Mortgage Loan as of the date on which such
REO
Property was acquired on behalf of the Trust, minus
the
aggregate amount of REO Principal Amortization in respect of such REO Property
for all previously ended calendar months, to the extent distributed pursuant
to
Section 5.01 before such date of determination; and (y) as of any date
of determination subsequent to the Distribution Date on which the proceeds,
if
any, of a Liquidation Event with respect to such REO Property would be
distributed, zero.
42
“Step
Down Conditions”:
As of
any Distribution Date on which any decrease in any Senior Prepayment Percentage
may apply, (i) the outstanding Principal Balance of all Mortgage Loans that
are
60 days or more Delinquent (including for this purpose any such Mortgage Loan
in
foreclosure, in bankruptcy, any related REO Property, and any Mortgage Loan
that
has been modified for the 12-month period following the modification of such
Mortgage Loan and thereafter calculated at its current delinquency status),
averaged over the preceding six month period, as a percentage of the aggregate
of the Class Certificate Principal Balances of the Classes of Subordinate
Certificates on such Distribution Date, does not equal or exceed 50% and
(ii) cumulative Realized Losses (including for this purpose the amount of
principal or interest which has been forgiven in connection with a modification
of terms of a Mortgage Loan made between the related Servicer and the Mortgagor
as part of a loss mitigation strategy in the related Due Period) with respect
to
all of the Mortgage Loans do not exceed:
|
·
|
for
any Distribution Date on or after the seventh anniversary until the
eighth
anniversary of the first Distribution Date, 30% of the aggregate
Class
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the eighth anniversary until the
ninth
anniversary of the first Distribution Date, 35% of the aggregate
Class
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the ninth anniversary until the
tenth
anniversary of the first Distribution Date, 40% of the aggregate
Class
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the tenth anniversary until the
eleventh
anniversary of the first Distribution Date, 45% of the aggregate
Class
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date, and
|
43
|
·
|
for
any Distribution Date on or after the eleventh anniversary of the
first
Distribution Date, 50% of the aggregate Class Certificate Principal
Balance of the Subordinate Certificates as of the Closing
Date.
|
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Trustee or the Securities Administrator.
“Subordinate
Certificate”:
Any
one of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class B-6
Certificates.
“Subordinate
Certificate Pass-Through Rate”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
per annum rate equal to the weighted average (weighted on the basis of the
related Subordinate Component) of the Net WACs for Loan Group 1, Loan Group
2,
Loan Group 3 and Loan Group 4.
“Subordinate
Component”:
With
respect to each Loan Group and any Distribution Date, the excess of the related
Loan Group Balance for such Distribution Date over the aggregate Class
Certificate Principal Balance of the related Senior Certificate Group
immediately preceding such Distribution Date. The designation “1,” “2,” “3” or
“4” appearing after the corresponding Loan Group designation is used to indicate
a Subordinate Component allocable to Loan Group 1, Loan Group 2, Loan Group
3
and Loan Group 4, respectively.
“Subordinate
Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Percentage for such Loan Group and Distribution
Date; provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to two Loan Groups, the Subordinate Percentage will represent
the
entire interest of the Subordinate Certificates in the Mortgage Loans and will
equal the difference between 100% and the related Senior Percentage for such
Distribution Date.
“Subordinate
Prepayment Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Prepayment Percentage for such Distribution
Date.
“Subordinate
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, an amount equal to the
sum
of:
(1) the
related Subordinate Percentage of all amounts described in clauses (a) through
(d) of the definition of “Principal Distribution Amount” for such Loan Group and
Distribution Date;
(2) with
respect to each Mortgage Loan in such Loan Group that became a Liquidated
Mortgage Loan during the related Prepayment Period, the amount of the Net
Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the definition
of
“Senior Principal Distribution Amount” for such Loan Group and Distribution
Date, up to the related Subordinate Percentage of the Stated Principal Balance
of such Mortgage Loan; and
44
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(f) of the definition of “Principal Distribution Amount” for such Loan Group and
Distribution Date;
provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to two Loan Groups, the Subordinate Principal Distribution Amount
will not be calculated by Loan Group but will equal the amount calculated
pursuant to the formula set forth above based on the applicable Subordinate
Percentage or Subordinate Prepayment Percentage, as applicable, for such
Distribution Date with respect to all the Mortgage Loans rather than the
Mortgage Loans in the related Loan Group only.
“Sub-Servicer”:
Any
Person, including without limitation Cenlar, that (i) services Mortgage Loans
on
behalf of any Servicer, the Master Servicer, the Securities Administrator,
the
Trustee or the Custodian and (ii) is responsible for the performance (whether
directly or through sub-servicers or Subcontractors) of Servicing functions
required to be performed under this Agreement, any related Servicing Agreement
or any sub-servicing agreement that are identified in Item 1122(d) of Regulation
AB.
“Sub-Servicing
Fee”:
With
respect to each Mortgage Loan sub-serviced by Cenlar, an amount equal to
one-twelfth the product of (i) the Sub-Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan as of the first day of the related
month
“Sub-Servicing
Fee Rate”:
With
respect to any Mortgage Loan, sub-serviced by Cenlar and serviced by Xxxxxxxxx
on behalf of the Trust Fund, the “Cenlar Subservicing Fee Rate” as defined in
the Sub-Servicing Acknowledgement Agreement, dated as of March 1, 2002, by
and
between Xxxxxxxxx, as Servicer, and Cenlar, as Sub-Servicer, as amended by
the
Amendment to Sub-Servicing Acknowledgement Agreement, dated as of December
1,
2002, by the Second Amendment to Subservicing Acknowledgement Agreement, dated
as of January 1, 2006, by the Third Amendment to Subservicing Acknowledgement,
dated as of August 1, 2007, by the Fourth Amendment to Subservicing
Acknowledgment Agreement, dated as of October 1, 2007, by the Fifth Amendment
to
Subservicing Acknowledgement Agreement dated as of February 1, 2008, and by
the
Sixth Amendment to the Subservicing Acknowledgement Agreement, dated as of
February 1, 2008, including the related Transfer Notice, dated February 28,
2008, from Xxxxxxxxx, as Seller, to Xxxxxxxxx, as Servicer, and Cenlar, as
Sub-Servicer.
“Substitution
Adjustment”:
As
defined in Section 2.03(d) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
each of the REMICs created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions
of
federal, state or local tax laws.
45
“10-K
Filing Deadline”:
As
defined in Section 3.19(b).
“Ten-Year
Hybrid Mortgage Loans”:
The
Mortgage Loans set forth on Schedule IV hereto.
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Xxxxxxxxx”:
Xxxxxxxxx Mortgage Home Loans, Inc., a Delaware corporation, and its successors
and assigns.
“Three-Year
Hybrid Mortgage Loans”:
The
Mortgage Loans identified as such and as set forth on Schedule II
hereto.
“TMI”:
Xxxxxxxxx Mortgage, Inc., a Maryland corporation, and its successors and
assigns.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust”:
Xxxxxxxxx Mortgage Securities Trust 2008-1, a common law trust created under
the
Agreement and governed under New York State law.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, such Trust Fund consisting of: (i) such Mortgage Loans as from
time to time are subject to this Agreement, together with the Mortgage Files
relating thereto, and together with all collections thereon and proceeds thereof
(but not including any Prepayment Penalty Amounts), (ii) any REO Property,
together with all collections thereon and proceeds thereof, (iii) the Trustee’s
rights with respect to the Mortgage Loans under all insurance policies required
to be maintained pursuant to this Agreement and any proceeds thereof, (iv)
the
Depositor’s rights under the Mortgage Loan Purchase Agreement (including any
security interest created thereby); (v) the Depositor's security interest in
the
Additional Collateral, (vi) the Distribution Account (subject to the last
sentence of this definition), any REO Account and such assets that are deposited
therein from time to time and any investments thereof, together with any and
all
income, proceeds and payments with respect thereto, (vii) all right, title
and
interest of the Depositor in and to each security or pledge agreement in respect
of Additional Collateral and (viii) all right, title and interest of the
Seller in and to each of the Servicing Agreements. Notwithstanding the
foregoing, however, the Trust Fund specifically excludes (1) all payments and
other collections of interest and principal due on the Mortgage Loans on or
before the Cut-Off Date and principal received before the Cut-Off Date (except
any principal collected as part of a payment due after the Cut-Off Date), (2)
all income and gain realized from Permitted Investments of funds on deposit
in
the Distribution Account, (3) any Prepayment Penalty Amounts and (4) any
Retained Interest.
46
“Trustee”:
LaSalle Bank National Association, a national banking association, not in its
individual capacity but solely as trustee, its successors or assigns, or any
successor trustee appointed as herein provided.
“Trustee
Fee”:
The
annual on-going fee payable by the Master Servicer on behalf of the Trust to
the
Trustee from the Master Servicer Fee pursuant to the terms of the separate
fee
letter agreement between the Trustee and the Master Servicer relating to the
Xxxxxxxxx Mortgage Securities Trust 2008-1.
“Two
Times Test”:
As to
any Distribution Date, (i) the Aggregate Subordinate Percentage is at least
two
times the Aggregate Subordinate Percentage as of the Closing Date; (ii) the
aggregate of the Principal Balances of all Mortgage Loans that are Delinquent
60
days or more (including for this purpose any such Mortgage Loan in foreclosure,
in bankruptcy, any related REO Property, and any Mortgage Loan that has been
modified for the 12-month period following the modification of such Mortgage
Loan and thereafter calculated at its current delinquency status), averaged
over
the preceding six-month period, as a percentage of the aggregate of the Class
Certificate Principal Balances of the Subordinate Certificates, does not equal
or exceed 50%; and (iii) on or after the Distribution Date in March 2011,
cumulative Realized Losses (including for this purpose any amounts of principal
and interest which have been forgiven in connection with a modification of
terms
of a Mortgage Loan made between the related Servicer and the Mortgagor as part
of a loss mitigation strategy in the related Due Period) do not exceed 30%
of
the Original Subordinated Principal Balance, or prior to the Distribution Date
in March 2011, cumulative Realized Losses (including for this purpose any
amounts of principal and interest which have been forgiven in connection with
a
modification of terms of a Mortgage Loan made between the related Servicer
and
the Mortgagor as part of a loss mitigation strategy in the related Due Period)
do not exceed 20% of the Original Subordinated Principal Balance.
“Undercollateralized
Group”:
With
respect to any Distribution Date, any Group 1 Certificates, Group 2
Certificates, Group 3 Certificates or Group 4 Certificates as to which the
aggregate Class Certificate Principal Balance thereof, after giving effect
to
distributions pursuant to Section 5.01(a) on such date, is greater than the
Loan
Group Balance of the related Loan Group for such Distribution Date.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by PTE 97-34 (Exemption Application No. D-10245 and D-10246) and by
PTE
2000-58 (Exemption Application No. D-10829) and PTE 2002-41 (Exemption
Application No. D-11077), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
47
“United
States Person”
or
“U.S.
Person”:
A
citizen or resident of the United States, a corporation, partnership or other
entity treated as a corporation or partnership for federal income tax purposes
(other than a partnership that is not treated as a U.S. Person pursuant to
any
applicable Treasury regulations) created or organized in, or under the laws
of,
the United States, any state thereof or the District of Columbia, or an estate
the income of which 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. The
term “United States” shall have the meaning set forth in Section 7701 of
the Code or successor provisions.
“Unpaid
Interest Shortfall Amount”:
With
respect to each Class of Certificates and (i) the first Distribution Date,
zero, and (ii) any Distribution Date after the first Distribution Date, the
amount, if any, by which (1)(a) the Monthly Interest Distributable Amount for
that Class for the immediately preceding Distribution Date exceeds (b) the
aggregate amount distributed on that Class in respect of such Monthly Interest
Distributable Amount on the preceding Distribution Date plus
(2) any
such shortfalls remaining unpaid from prior Distribution Dates.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac; and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 95% of the voting rights shall be allocated among the Classes
of Certificates (other than the Class A-R Certificates, Class 1-AX Certificate,
Class 2-AX Certificates, Class 3-AX Certificates and Class 4-AX Certificates),
pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Certificate Principal Balance of such Class and the denominator of which is
the
aggregate of the Class Certificate Principal Balances then outstanding and
1%
voting rights shall be allocated to the Holders of each of the Class A-R
Certificate, Class 1-AX Certificate, Class 2-AX Certificates, Class 3-AX
Certificates and Class 4-AX Certificates; provided,
further,
that
when the Class Certificate Notional Balance of any Class of Interest-Only
Certificate has been reduced to zero, the voting rights allocated to such Class
shall be allocated pro
rata
to the
Holders of the other Regular Certificates; provided,
further,
when
none of the Regular Certificates are outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance (or
Certificate Notional Balance, in the case of Interest-Only Certificates) of
each
Certificate of such Class and the denominator of which is the Class Certificate
Principal Balance (or Certificate Notional Balance, in the case of Interest-Only
Certificates) of such Class; provided,
however,
that any
Certificate registered in the name of the Master Servicer, the Securities
Administrator, the Trustee or any of their respective affiliates shall not
be
included in the calculation of Voting Rights as long as other Certificates
registered in the names of other entities remain outstanding.
48
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to (i) each Mortgage Loan (other than the right to receive
any
Retained Interest or any Prepayment Penalty Amounts) identified on the Mortgage
Loan Schedule, including the related Cut-Off Date Principal Balance, all
interest due thereon after the Cut-Off Date and all collections in respect
of
interest and principal due after the Cut-Off Date; (ii) all the Depositor’s
right, title and interest in and to the Distribution Account and all amounts
from time to time credited to and to the proceeds of the Distribution Account;
(iii) any real property that secured each such Mortgage Loan and that has been
acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s
interest in any insurance policies in respect of the Mortgage Loans; (v) the
Depositor’s security interest in the Additional Collateral; (vi) all proceeds of
any of the foregoing; and (vii) all other assets included or to be included
in
the Trust Fund. Such assignment includes all interest and principal due to
the
Depositor or the Master Servicer after the Cut-Off Date with respect to the
Mortgage Loans.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreements to the extent assigned in the Mortgage Loan Purchase Agreement.
The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Purchase Agreement and all
rights of the Seller under the Servicing Agreements as if, for such purpose,
it
were the Depositor or the Seller, as applicable, including the Seller’s right to
enforce remedies for breaches of representations and warranties and delivery
of
the Mortgage Loan Documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
49
In
addition, with respect to any Additional Collateral Mortgage Loan, the Depositor
does hereby transfer, assign, set-over and otherwise convey to the Trustee
without recourse (except as provided herein) (i) its rights as assignee under
any security agreements, pledge agreements or guarantees relating to the
Additional Collateral supporting any Additional Collateral Mortgage Loan, (ii)
its security interest in and to any Additional Collateral and (iii) its right
to
receive payments in respect of any Additional Collateral Mortgage Loan pursuant
to the related Servicing Agreement.
It
is
agreed and understood by the Depositor and the Trustee that it is not intended
that any Mortgage Loan to be included in the Trust Fund be a (i) “High-Cost Home
Loan” as defined in the New Jersey Home Ownership Act effective November 27,
2003; (ii) “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004; (iii) “High-Cost Home Mortgage Loan”
as defined in the Massachusetts Predatory Home Loan Practices Act effective
November 7, 2004 or (iv) “High Cost Home Loan” as defined in the Indiana Home
Loan Practices Act effective January 1, 2005.
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the Custodian as
its
designated agent, the following documents or instruments with respect to each
Mortgage Loan (a “Mortgage
File”)
so
transferred and assigned:
|
(i)
|
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of LaSalle
Bank National Association, as Trustee for Xxxxxxxxx Mortgage Securities
Trust 2008-1, without recourse”, or with respect to any lost Mortgage
Note, an original Lost Note Affidavit stating that the original mortgage
note was lost, misplaced or destroyed, together with a copy of the
related
mortgage note; provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off
Date Principal Balance of which is less than or equal to 2% of the
Cut-Off
Date Aggregate Principal Balance;
|
|
(ii)
|
originals
or copies of any guarantee, security agreement or pledge agreement
relating to any Additional Collateral, if applicable, and executed
in
connection with the Mortgage Note, assigned to the Trustee on behalf
of
the Trust;
|
50
|
(iii)
|
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, or a copy thereof certified by the public
recording office in which such Mortgage has been recorded, and in
the case
of each MERS Mortgage Loan, the original Mortgage, noting the presence
of
the MIN for that Mortgage Loan and either language indicating that
the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or
if such
Mortgage Loan was not a MOM Loan at origination, the original Mortgage
and
the assignment to MERS, in each case with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage was
executed
pursuant to a power of attorney, with evidence of recording thereon
or, if
such Mortgage or power of attorney has been submitted for recording
but
has not been returned from the applicable public recording office,
has
been lost or is not otherwise available, a certified copy of such
Mortgage
or power of attorney, as the case may be, and that the original of
such
Mortgage has been forwarded to the public recording office, or, in
the
case of a Mortgage that has been lost, a copy thereof (certified
as
provided for under the laws of the appropriate jurisdiction) and
a written
Opinion of Counsel (delivered at the Seller’s expense) acceptable to the
Trustee and the Depositor that an original recorded Mortgage is not
required to enforce the Trustee’s interest in the Mortgage
Loan;
|
|
(iv)
|
the
original or a copy of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused
by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of
such assumption, modification or substitution agreement, pending
delivery
of the original thereof, together with an Officer’s Certificate of the
Seller certifying that the copy of such assumption, modification
or
substitution agreement delivered to the Trustee (or its custodian)
on
behalf of the Trust is a true copy and that the original of such
agreement
has been forwarded to the public recording
office;
|
|
(v)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment of Mortgage, in form and substance acceptable
for
recording. The Mortgage shall be assigned to “LaSalle Bank National
Association, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2008-1,
without recourse” or in blank;
|
|
(vi)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening Assignment of Mortgage showing a
complete
chain of assignments, or, in the case of an intervening Assignment
of
Mortgage that has been lost, a written Opinion of Counsel (delivered
at
the Seller’s expense) acceptable to the Trustee that such original
intervening Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage
Loans;
|
51
|
(vii)
|
the
original or a copy of lender’s title insurance policy;
and
|
|
(viii)
|
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
|
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the applicable Servicer to take), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), such actions as are necessary to cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by
including (or deleting, in the case of Mortgage Loans that are repurchased
in
accordance with this Agreement) in such computer files the information required
by the MERS® System to identify the series of the Certificates issued in
connection with the transfer of such Mortgage Loans to the Xxxxxxxxx Mortgage
Securities Trust 2008-1.
With
respect to each Cooperative Loan the Seller, on behalf of the Depositor does
hereby deliver to the Trustee (or Custodian) the related Cooperative Loan
Documents and the Seller will take (or shall cause the applicable Servicer
to
take), at the expense of the Seller (with the cooperation of the Depositor,
the
Trustee and the Master Servicer) such actions as are necessary under applicable
law (including but not limited to the relevant UCC) in order to perfect the
interest of the Trustee in the related Mortgaged Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust or the Trustee)
acceptable to the Trustee, each Rating Agency and the Master Servicer, recording
in such states is not required to protect the Trust’s interest in the related
Mortgage Loans; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the applicable Servicer to submit each such assignment for recording),
at
the cost and expense of the Seller, in the manner described above, at no expense
to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction
by the Majority Certificateholders, (2) the occurrence of a bankruptcy or
insolvency relating to the Seller or the Depositor, or (3) with respect to
any
one Assignment of Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the applicable Servicer to properly record), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), in each public recording office where the related Mortgages are
recorded, each assignment referred to in Section 2.01(v) above with respect
to a
Mortgage Loan that is not a MERS Mortgage Loan.
The
Trustee agrees to execute and deliver to the Depositor on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with
any exceptions noted), substantially in the form attached as Exhibit G-1
hereto.
52
If
the
original lender’s title insurance policy, or a copy thereof, was required to be
but was not delivered pursuant to Section 2.01(vii) above, the Seller shall
deliver or cause to be delivered to the Trustee the original or a copy of a
written commitment or interim binder or preliminary report of title issued
by
the title insurance or escrow company, with the original or a copy thereof
to be
delivered to the Trustee, promptly upon receipt thereof, but in any case within
175 days of the Closing Date. The Seller shall deliver or cause to be delivered
to the Trustee, promptly upon receipt thereof, any other documents constituting
a part of a Mortgage File received with respect to any Mortgage Loan sold to
the
Depositor by the Seller and required to be delivered to the Trustee, including,
but not limited to, any original documents evidencing an assumption or
modification of any Mortgage Loan.
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Seller, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the Custodian on behalf
of
the Trustee, an Officer’s Certificate which shall include a statement to the
effect that all amounts received in connection with such prepayment that are
required to be deposited in the Distribution Account have been so deposited.
All
original documents that are not delivered to the Trustee on behalf of the Trust
shall be held by the Master Servicer or the applicable Servicer in trust for
the
Trustee, for the benefit of the Trust and the Certificateholders.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Seller shall have 90 days
to
cure such defect or deliver such missing document to the Trustee. If the Seller
does not cure such defect or deliver such missing document within such time
period, the Seller shall either repurchase or substitute for such Mortgage
Loan
in accordance with Section 2.03 hereof.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
SECTION
2.02. Acceptance
by Trustee.
The
Trustee hereby accepts its appointment as Custodian hereunder and acknowledges
the receipt, subject to the provisions of Section 2.01 and subject to the review
described below and any exceptions noted on the exception report described
in
the next paragraph below, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that,
in its capacity as Custodian, it holds and will hold such documents and the
other documents delivered to it constituting a Mortgage File, and that it holds
or will hold all such assets and such other assets included in the definition
of
“Trust Fund” in trust for the exclusive use and benefit of all present and
future Certificateholders.
The
Trustee further agrees, for the benefit of the Certificateholders, to review
each Mortgage File delivered to it and to certify and deliver to the Depositor,
the Seller and each Rating Agency an interim certification in substantially
the
form attached hereto as Exhibit G-2, within 90 days after the Closing Date
(or,
with respect to any document delivered after the Startup Day, within 45 days
of
receipt and with respect to any Qualified Substitute Mortgage, within five
Business Days after the assignment thereof) that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full
or any Mortgage Loan
53
specifically
identified in the exception report annexed thereto as not being covered by
such
certification), (i) all documents required to be delivered to it pursuant
Section 2.01 of this Agreement are in its possession, (ii) such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and relate to such Mortgage Loan and (iii) based on its examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (i), (ii), (iii), (xiii), (xiv) and (xviii)
of the Mortgage Loan Schedule (to the extent such items are required to be
delivered to it as part of the Mortgage Files pursuant to Section 2.01)
accurately reflects information set forth in the Mortgage File. It is herein
acknowledged that, in conducting such review, the Trustee is under no duty
or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable,
or
appropriate for the represented purpose or that they have actually been recorded
or that they are other than what they purport to be on their face.
No
later
than 180 days after the Closing Date, the Trustee shall deliver to the Depositor
and the Seller a final certification in the form annexed hereto as Exhibit
G-3
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If,
in
the process of reviewing the Mortgage Files and making or preparing, as the
case
may be, the certifications referred to above, the Trustee finds any document
or
documents constituting a part of a Mortgage File to be missing or not conforming
to the requirements set forth herein, at the conclusion of its review the
Trustee (or the Custodian as its designated agent) shall promptly notify the
Seller, the Depositor and the Master Servicer. In addition, upon the discovery
by the Seller or the Depositor (or upon receipt by the Trustee of written
notification of such breach) of a breach of any of the representations and
warranties made by the Seller in the Mortgage Loan Purchase Agreement in respect
of any Mortgage Loan that materially adversely affects such Mortgage Loan or
the
interests of the related Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
to
this Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Seller.
(a) Upon
discovery or receipt of written notice that a document does not comply with
the
requirements of Section 2.01 hereof, or that a document is missing from, a
Mortgage File or of the breach by the Seller of any representation, warranty
or
covenant under the Mortgage Loan Purchase Agreement or in Section 2.04 or
Section 2.08 hereof in respect of any Mortgage Loan which materially adversely
affects the value of that Mortgage Loan or the interest therein of the
54
Certificateholders,
the Trustee (or the Custodian as its designated agent) shall promptly notify
the
Seller of such noncompliance, missing document or breach and request that the
Seller deliver such missing document or cure such noncompliance or breach within
90 days from the date that the Seller was notified of such missing document,
noncompliance or breach, and if the Seller does not deliver such missing
document or cure such noncompliance or breach in all material respects during
such period, the Trustee shall enforce the Seller’s obligation under the
Mortgage Loan Purchase Agreement and cause the Seller to repurchase that
Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the
Determination Date following the expiration of such 90 day period (subject
to
Section 2.03(e) below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Schedule III to the Mortgage Loan Purchase Agreement, the Seller
shall be obligated to cure such breach or purchase the affected Mortgage Loans
for the Purchase Price or, if the Mortgage Loan or the related Mortgaged
Property acquired with respect thereto has been sold, then the Seller shall
pay,
in lieu of the Purchase Price, any excess of the Purchase Price over the Net
Liquidation Proceeds received upon such sale. The Purchase Price for the
repurchased Mortgage Loan or such other amount due shall be deposited in the
Distribution Account on or prior to the next Determination Date after the
Seller’s obligation to repurchase such Mortgage Loan arises. The Trustee, upon
receipt of written certification from the Securities Administrator of the
related deposit in the Distribution Account, shall release to the Seller the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Seller shall furnish to
it
and as shall be necessary to vest in the Seller any Mortgage Loan released
pursuant hereto and the Trustee shall have no further responsibility with regard
to such Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). In lieu of repurchasing any such Mortgage Loan as provided
above, the Seller may cause such Mortgage Loan to be removed from the Trust
Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one
or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d) below. It is understood and agreed
that
the obligation of the Seller to cure or to repurchase (or to substitute for)
any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of missing or defective documentation
or
on account of a breach of a representation, warranty or covenant as described
in
this Section 2.03(a).
Any
costs
and expenses incurred by the Trustee enforcing the obligations of the Seller
under this Section 2.03(a) shall be reimbursable to the Trustee from amounts
on
deposit in the Distribution Account.
55
(b) If
pursuant to the provisions of Section 2.03(a), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller will take (or shall cause the applicable Servicer to take),
at
the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary either (i) cause MERS
to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
(c) [Reserved].
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Mortgage Loans, such substitution shall be effected by the Seller
delivering to the Trustee, for such Qualified Substitute Mortgage Loan or
Mortgage Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee,
and such other documents and agreements, with all necessary endorsements
thereon, as are required by Section 2.01 hereof (subject to the exceptions
provided therein), together with an Officers’ Certificate stating that each such
Qualified Substitute Mortgage Loan satisfies the definition thereof and
specifying the Substitution Adjustment (as described below), if any, in
connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Trustee shall acknowledge receipt for such Qualified Substitute
Mortgage Loan or Loans and, within five Business Days thereafter, shall review
such documents as specified in Section 2.02 hereof and deliver to the related
Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans,
a
certification substantially in the form attached hereto as Exhibit G-2, with
any
exceptions noted thereon. Within 180 days of the date of substitution, the
Trustee shall deliver to the Seller and the Master Servicer a certification
substantially in the form of Exhibit G-3 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any exceptions noted thereon. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to Certificateholders will reflect
the collections and recoveries in respect of such Deleted Mortgage Loan in
the
Due Period preceding the month of substitution and the Depositor or the Seller,
as the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall
give or cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon
such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
part of the Trust Fund and shall be subject in all respects to the terms of
this
Agreement and, in the case of a substitution effected by the Seller, the
Mortgage Loan Purchase Agreement, including, in the case of a substitution
effected by the Seller all representations and warranties thereof included
in
the Mortgage Loan Purchase Agreement and all representations and warranties
thereof set forth in Section 2.04 hereof, in each case as of the date of
substitution.
56
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to, the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the related Substitution Adjustment,
if
any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage
Loan or Loans and an acknowledgment from the Securities Administrator of its
receipt of the deposit to the Distribution Account, shall release to the Seller
the related Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause (a) any federal tax to be imposed
on the Trust Fund, including without limitation, any federal tax imposed on
“prohibited transactions” under Section 860F(a)(l) of the Code or on
“contributions after the startup date” under Section 860G(d)(l) of the Code, or
(b) any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificate is outstanding. If such Opinion of Counsel cannot be delivered,
then such substitution may only be effected at such time as the required Opinion
of Counsel can be given.
(e) Upon
discovery by the Seller, the Master Servicer, a Servicer or the Trustee 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 within
two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set forth
in Section 2.03(d), substitute one or more Qualified Substitute Mortgage Loans
for the affected Mortgage Loan within 90 days of the earlier of discovery or
receipt of such notice with respect to such affected Mortgage Loan. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(a) above, if made by the Seller. The Trustee shall reconvey to
the
Seller the Mortgage Loan to be released pursuant hereto 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.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage
Loans.
The
Seller hereby represents and warrants to the Trustee for the benefit of the
Certificateholders that the representations and warranties made by the Seller
pursuant to Schedule III to the Mortgage Loan Purchase Agreement are hereby
being made to the Trustee and are true and correct as of the Closing
Date.
57
With
respect to the representations and warranties incorporated in this Section
2.04
that are made to the best of the Seller’s knowledge or as to which the Seller
has no knowledge, if it is discovered by the Depositor, the Seller, the Master
Servicer or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interest therein of the Certificateholders
then, notwithstanding the Seller’s lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time
the
representation or warranty was made, such inaccuracy shall be deemed a breach
of
the applicable representation or warranty.
Within
90
days of its discovery or its receipt of notice of any such missing or materially
defective documentation or any such breach of a representation or warranty,
the
Seller shall promptly deliver such missing document or cure such defect or
breach in all material respects or, in the event such defect or breach cannot
be
cured, the Seller shall repurchase the affected Mortgage Loan or cause the
removal of such Mortgage Loan from the Trust Fund and substitute for it one
or
more Qualified Substitute Mortgage Loans, in either case, in accordance with
Section 2.03 hereof.
It
is
understood and agreed that the representations and warranties incorporated
in
this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the
Depositor, the Seller, the Master Servicer or the Trustee of a breach of any
of
the foregoing representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties, and in no event later than two Business Days from
the date of such discovery. It is understood and agreed that the obligations
of
the Seller set forth in Section 2.03(a) hereof to cure, substitute for or
repurchase a related Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement constitute the sole remedies available to the Certificateholders
or to
the Trustee on their behalf respecting a breach of the representations and
warranties incorporated in this Section 2.04.
SECTION
2.05. [Reserved].
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust and the Trustee on behalf of
the
Certificateholders as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
58
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
59
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02 hereof, together with the assignment to it of all other assets included
in
the Trust Fund, receipt of which is hereby acknowledged. Concurrently with
such
assignment and delivery and in exchange therefor, the Securities Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has executed, authenticated and delivered to or upon the order of
the
Depositor, the Certificates in authorized denominations. The interests evidenced
by the Certificates constitute the entire beneficial ownership interest in
the
Trust Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trust and the Trustee on behalf
of
the Certificateholders that, as of the Closing Date or as of such date
specifically provided herein:
(i) the
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of Delaware and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located to the
extent necessary to fulfill its obligations hereunder;
(ii) the
Seller has the power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement and this Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
legal, valid and binding obligation of the Seller, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization or other similar laws in relation
to
the rights of creditors generally;
(iii) the
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a default under or result
in
a material breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
60
(iv) the
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) the
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vi) the
Seller has good, marketable and indefeasible title to the Mortgage Loans, free
and clear of any and all liens, pledges, charges or security interests of any
nature encumbering the Mortgage Loans and upon the payment of the purchase
price
under the Mortgage Loan Purchase Agreement by the Depositor, the Depositor
will
have good and marketable title to the Mortgage Notes and Mortgage Loans, free
and clear of all liens or encumbrances;
(vii) the
Mortgage Loans are not being transferred by the Seller with any intent to
hinder, delay or defraud any creditors of the Seller;
(viii) there
are
no actions or proceedings against, or investigations known to it of, the Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or validity or enforceability of, this
Agreement;
(ix) 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 by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained;
and
(x) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
the
Mortgage Loan Purchase Agreement are not subject to the bulk transfer or any
similar statutory provisions.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor,
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trust, as assignee of the Depositor, in, to and under the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
61
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE MORTGAGE LOANS
SECTION
3.01. Master
Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and, where
applicable, the Correspondent Sellers Guide and the Master Servicing Guide,
and
shall have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices and,
where applicable, the Master Servicing Guide. Furthermore, the Master Servicer
shall oversee and consult with each Servicer as necessary from time-to-time
to
carry out the Master Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by each Servicer and shall cause each Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by such
Servicer under the applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor each Servicer’s servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis
and
coordinate corrective adjustments to the Servicers’ and Master Servicer’s
records, and based on such reconciled and corrected information, prepare the
statements specified in Section 5.04 and any other information and statements
required hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
related Servicing Accounts pursuant to the applicable Servicing
Agreements.
The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicers or Master Servicer in exercising
such
powers.
The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
62
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as Custodian hereunder) regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon the written request of the Master Servicer, shall execute and
deliver to the related Servicer and the Master Servicer any court pleadings,
requests for trustee’s sale or other documents necessary or desirable to (i) the
foreclosure or trustee’s sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage; (iii) obtain a deficiency judgment against the Mortgagor;
or
(iv) enforce any other rights or remedies provided by the Mortgage Note or
Mortgage or otherwise available at law or equity.
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each such REMIC as
a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee, the Securities
Administrator and the Master Servicer shall not (a) sell or knowingly permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans or is otherwise permitted pursuant to this Agreement or the
Trustee has received a REMIC Opinion prepared at the expense of the Trust;
and
(b) other than with respect to a substitution pursuant to the Mortgage Loan
Purchase Agreement or Section 2.03 or 2.04 of this Agreement or as otherwise
provided in this Agreement, as applicable, accept any contribution to any REMIC
after the Startup Day without receipt of a REMIC Opinion.
SECTION
3.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust) and the Depositor the compliance by each Servicer with its duties
under the related Servicing Agreement. In the review of each Servicer’s
activities, the Master Servicer may rely upon an officer’s certificate of the
Servicer with regard to such Servicer’s compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor
and
the Trustee thereof and the Master Servicer shall issue such notice or take
such
other action as it deems appropriate.
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(b) The
Master Servicer, for the benefit of the Trust and the Certificateholders, shall
(acting as agent of the Trust when enforcing the Trust’s rights under each
Servicing Agreement) (i) enforce the obligations of each Servicer under the
related Servicing Agreement, and (ii) in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of
such
Servicer thereunder and act as servicer of the related Mortgage Loans or enter
into a new Servicing Agreement with a successor Servicer selected by the Master
Servicer which the Master Servicer shall cause the Trustee to acknowledge;
provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense except as provided in paragraph (c) below, provided that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer with respect to any Servicing
Agreement (including, without limitation, (i) all legal costs and expenses
and
all due diligence costs and expenses associated with an evaluation of the
potential termination of the Servicer as a result of an event of default by
such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not
fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall
be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
(f) With
respect to Additional Collateral Mortgage Loans, the Master Servicer shall
have
no duty or obligation to supervise, monitor or oversee the activities of each
Servicer under its Servicing Agreement with respect to Additional Collateral,
except (a) with respect to any instances where a Servicer, in the course of
fulfilling its obligations under the related Servicing Agreement seeks
directions, instructions, consents or waivers from the Master Servicer with
respect to any item of Additional Collateral, or (b) upon the occurrence of
the
following events (i) in the case of a final liquidation of any Mortgaged
Property secured by Additional Collateral, the Master Servicer shall enforce
the
obligation of the Servicer under the related Servicing Agreement to liquidate
such Additional Collateral as required by such Servicing Agreement, and (ii)
if
the Master Servicer assumes the obligations of such Servicer as successor
servicer under the related Servicing Agreement pursuant to this Section 3.03,
as
successor servicer, it shall be bound to service and administer the Additional
Collateral in accordance with the provisions of such Servicing
Agreement.
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(g) If
a
Servicing Agreement requires the approval of the Master Servicer for a
modification to a Mortgage Loan, the Master Servicer shall approve such
modification if, based upon its receipt of written notification from the related
Servicer outlining the terms of such modification and appropriate supporting
documentation, the Master Servicer determines that the modification is permitted
under the terms of the related Servicing Agreement and that any conditions
to
such modification set forth in related Servicing Agreement have been satisfied.
If a Servicing Agreement requires approval or consent of the Trustee for a
modification, the Trustee shall approve or consent to such modification if
the
Master Servicer makes such a determination and in reliance thereon.
(h) If
a
Servicing Agreement requires the oversight and monitoring of loss mitigation
measures with respect to the related Mortgage Loans, the Master Servicer will
monitor any loss mitigation procedure or recovery action related to a defaulted
Mortgage Loan (to the extent it receives notice of such from the related
Servicer) and confirm that such loss mitigation procedure or recovery action
is
initiated, conducted and concluded in accordance with any timeframes and any
other requirements set forth in the related Servicing Agreement, and the Master
Servicer shall notify the Depositor in any case in which the Master Servicer
believes that the related Servicer is not complying with such timeframes and/or
other requirements.
SECTION
3.04. Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
SECTION
3.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders, the Trust and the
Trustee,
65
customary
consents or waivers and other instruments
and documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds, Liquidation Proceeds and Recoveries and (iv) to effectuate,
in its own name, on behalf the Trust, or in the name of the Trust, foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable; provided,
however,
that the
Master Servicer shall not (and, consistent with its responsibilities under
Section 3.03, shall not permit any Servicer to) knowingly or intentionally
take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
would result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, to enable the Master Servicer to master service and administer
the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust or in the name of the Trust (or cause the related Servicer, pursuant
to the related Servicing Agreement, to institute such proceedings either in
the
name of such Servicer on behalf of the Trust or in the name of the Trust),
unless otherwise required by law or otherwise appropriate. If the Master
Servicer or the Trustee has been advised that it is likely that the laws of
the
state in which action is to be taken prohibit such action if taken in the name
of the Trust or the Trustee on its behalf or that the Trust or the Trustee,
as
applicable, would be adversely affected under the “doing business” or tax laws
of such state if such action is taken in its name, the Master Servicer shall
join with the Trustee, on behalf of the Trust, in the appointment of a
co-trustee pursuant to Section 8.10 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Trustee,
be deemed to be the agent of the Trustee on behalf of the
Trust.
SECTION
3.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
66
SECTION
3.07. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement, promptly furnish to the Custodian, on behalf of the Trustee, two
copies of a certification substantially in the form of Exhibit F hereto signed
by a Servicing Officer or in a mutually agreeable electronic format which will,
in lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the related
Servicing Account maintained by the applicable Servicer pursuant to Section
4.01
or by the applicable Servicer pursuant to its Servicing Agreement have been
or
will be so deposited) and shall request that the Trustee (or the Custodian,
on
behalf of the Trustee) deliver to the applicable Servicer the related Mortgage
File. Upon receipt of such certification and request, the Trustee (or the
Custodian, on behalf of the Trustee), shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee (and the Custodian,
if
applicable) shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, each Servicer is authorized, to give,
as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall
be
chargeable to the related Servicing Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, the Trustee shall
execute such documents as shall be prepared and furnished to the Trustee by
a
Servicer or the Master Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
(or
the Custodian, on behalf of the Trustee), shall, upon the request of a Servicer
or the Master Servicer, and delivery to the Trustee (the Custodian, on behalf
of
the Trustee), of two copies of a request for release signed by a Servicing
Officer substantially in the form of Exhibit F (or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate
from
a Servicing Officer), release the related Mortgage File held in its possession
or control to the Servicer or the Master Servicer, as applicable. Such trust
receipt shall obligate the Servicer or the Master Servicer to return the
Mortgage File to the Trustee (or the Custodian on behalf of the Trustee) when
the need therefor by the Servicer or the Master Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Trustee (or the Custodian on behalf
of
the Trustee), to the Servicer or the Master Servicer.
67
SECTION
3.08. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trust.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee (or Custodian) such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof, or in
the
case of the Servicers, the applicable Servicing Agreement, to be delivered
to
the Trustee (or Custodian). Any funds received by the Master Servicer or by
a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Recoveries in respect of any Mortgage Loan shall be held for the benefit of
the
Trust and the Certificateholders subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing Fee,
any
additional compensation pursuant to Section 3.14 and any other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee
and any other amounts as provided in the applicable Servicing Agreement. The
Master Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) 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, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust and the Certificateholders and shall be and remain the sole and
exclusive property of the Trust; provided,
however,
that the
Master Servicer and each Servicer shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
SECTION
3.09. Standard
Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall enforce
any obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of
the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
68
(b) Pursuant
to Section 4.01 and 4.02, any amounts collected by the Servicers or the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Distribution Account, subject
to withdrawal pursuant to Section 4.02 and 4.03. Any cost incurred by the Master
Servicer or any Servicer in maintaining any such insurance if the Mortgagor
defaults in its obligation to do so shall be added to the amount owing under
the
Mortgage Loan where the terms of the Mortgage Loan so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section 4.02
and
4.03.
SECTION
3.10. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of
the
Trustee, the Trust 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 policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in
the
Distribution 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
3.11. Maintenance
of the Primary Insurance Policies.
(a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use
its
best reasonable efforts to cause each Servicer (to the extent required under
the
related Servicing Agreement) 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 (including any lender-paid
Primary Insurance Policy) in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable. The Master Servicer shall
not, and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary 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 except in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to cause each Servicer (to the extent required under
the
related Servicing Agreement) to present, on behalf of the Trustee, the Trust
and
the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to Section 4.01 and 4.02, any amounts
collected by the Servicer under any Primary Insurance Policies shall be
deposited in the Distribution Account, subject to withdrawal pursuant to Section
4.03.
69
SECTION
3.12. Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available and delivered) of any
Primary Insurance Policies, or certificate of insurance if applicable and
available, and any certificates of renewal as to the foregoing as may be issued
from time to time as contemplated by this Agreement and which come into its
possession. Until all amounts distributable in respect of the Certificates
have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or its Custodian, if any, as
directed by the Trustee) shall also retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions of
this
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee (or the Custodian, as directed by the Trustee), upon the
execution or receipt thereof the originals of any Primary Insurance Policies,
any certificates of renewal, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged 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,
all
in accordance with the applicable Servicing Agreement.
SECTION
3.14. Additional
Compensation to the Master Servicer.
Pursuant
to Section 4.02(c), certain income and gain realized from any investment of
funds in the Distribution Account shall be for the benefit of the Master
Servicer as additional compensation. Servicing compensation in the form of
assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in a Servicing
Agreement, not including any Prepayment Penalty Amounts) shall be retained
by
the applicable Servicer, or the Master Servicer, and shall not be deposited
in
the related Servicing Account or Distribution Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus
the
Master Servicing Fee due to the Master Servicer in respect of any Distribution
Date shall be reduced in accordance with Section 5.06.
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SECTION
3.15. REO
Property.
(a) In
the
event the Trust (or the Trustee on its behalf) acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the Trust, or if required under applicable law, to
the
Trustee, or to its nominee, on behalf of the Trust. The Master Servicer shall,
to the extent provided in the applicable Servicing Agreement, cause the
applicable Servicer to sell, any REO Property as expeditiously as possible
(and
in no event later than three years after acquisition) and in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the applicable Servicer to protect and conserve, such REO Property in
the
manner and to the extent required by the applicable Servicing Agreement, in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code.
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Servicing Account.
(c) The
Master Servicer, as successor servicer, and the applicable Servicer, upon the
final disposition of any REO Property, shall be entitled to reimbursement for
any related unreimbursed Advances and other unreimbursed advances as well as
any
unpaid Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that any such unreimbursed
Advances 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.
(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above shall be deposited in
the
related Servicing Account on or prior to the applicable Determination Date
in
the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Distribution Account on the next succeeding Servicer Remittance
Date.
SECTION
3.16. Assessments
of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year (subject to the later date
referred to in Section 3.16(a)(iii)), commencing in March 2009, the Master
Servicer, the Securities Administrator and the Custodian, each at its own
expense, shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it (unless such party has elected to take responsibility
for assessing compliance with the Relevant Servicing Criteria and providing
the
related attestation for any such Subcontractor engaged by it in accordance
with
Regulation AB Telephone Interpretation 17.06) to furnish, each at its own
expense, to the Securities Administrator and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(C) such party’s assessment of compliance with the Relevant Servicing Criteria
as of and for the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 3.19(b) and for each fiscal year thereafter, whether or
not
a Form 10-K is required to be filed, including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion
of
each such failure and the nature and status thereof, and (D) a statement that
a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for such period.
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(ii) No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and the Custodian, shall each forward to the
Securities Administrator and the Depositor the name of each Servicing Function
Participant engaged by it and what Relevant Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant (provided,
however,
that the
Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and the Securities Administrator
are the same Person). When the Master Servicer, the Custodian, and the
Securities Administrator submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment (and
attestation pursuant to subsection (b) of this Section 3.16) of each Servicing
Function Participant engaged by it.
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and each comparable report submitted by a Servicer
and, if applicable, consult with the Master Servicer, the Securities
Administrator, the Custodian, the Servicers and any Servicing Function
Participant engaged by such parties as to the nature of any material instance
of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address
the
Relevant Servicing Criteria for each party as set forth on Exhibit Q and on
any
similar exhibit set forth in each Servicing Agreement in respect of each
Servicer and notify the Depositor of any exceptions. None of such parties shall
be required to deliver any such assessments until March 30 in any given year
so
long as it has received written confirmation from the Depositor that a Form
10-K
is not required to be filed in respect of the Trust for the preceding calendar
year which, if the circumstances apply, the Depositor agrees to provide prior
to
March 1 of the applicable year; provided that the Custodian shall only be
required to deliver such an assessment of compliance with respect to any fiscal
year for which a Form 10-K is required to be filed in respect of the Trust.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it with its own assessment of compliance to be submitted to the
Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator, the Custodian, any
Servicer or any Servicing Function Participant engaged by any such party is
terminated, assigns its rights and obligations under, or resigns pursuant to,
the terms of this Agreement, or any applicable custodial agreement, Servicing
Agreement or sub-servicing agreement, as the case may be, such party (in the
case of a Servicer, to the extent required under the applicable Servicing
Agreement) shall provide or shall cause such Servicing Function Participant
to
provide for the applicable period preceding such assignment and termination
a
report on assessment of compliance pursuant to this Section 3.16(a) or to such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
72
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year (subject to the later date
referred to in Section 3.16(b)(ii)), commencing in March 2009, the Master
Servicer, the Securities Administrator, the Custodian, each at its own expense,
shall cause, and each such party shall cause any Servicing Function Participant
engaged by it to cause (unless such party has elected to take responsibility
for
assessing compliance with the Relevant Servicing Criteria and providing the
related attestation with respect to such Relevant Servicing Criteria for any
such Subcontractor engaged by it in accordance with Regulation AB Telephone
Interpretation 17.06), each at its own expense, a registered public accounting
firm (which may also render other services to the Master Servicer, the Trustee,
in its capacity as Custodian, the Securities Administrator, or such other
Servicing Function Participants, as the case may be) and that is a member of
the
American Institute of Certified Public Accountants to furnish a report to the
Securities Administrator and the Depositor, to the effect that (i) it has
obtained a representation regarding certain matters from the management of
such
party, which includes an assertion that such party has complied with the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued
or
adopted by the PCAOB, it is expressing an opinion as to whether such party’s
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not contain
restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer, the Trustee, in its
capacity as Custodian, the Securities Administrator, a Servicer or any Servicing
Function Participant engaged by such parties, (i) the Depositor shall review
the
report and, if applicable, consult with such parties as to the nature of any
defaults by such parties, in the fulfillment of any of each such party’s
obligations hereunder or under any other applicable agreement, and (ii) the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any exceptions.
None of the Master Servicer, the Securities Administrator, the Custodian or
any
Servicing Function Participant engaged by such parties shall be required to
deliver or cause the delivery of such reports until March 30 in any given year
for so long as it has received written confirmation from the Depositor that
a
Form 10-K is not required to be filed in respect of the Trust for preceding
calendar or fiscal year which, if the circumstances apply, the Depositor agrees
to provide prior to March 1 of the applicable year; provided that the Custodian
shall only be required to deliver or cause to be delivered such report with
respect to any fiscal year for which a Form 10-K is required to be filed by
the
Trust. The Master Servicer shall include each such attestation furnished to
it
with its own attestation to be submitted to the Securities Administrator
pursuant to this Section.
73
In
the
event the Master Servicer, the Securities Administrator, the Custodian, any
Servicer or any Servicing Function Participant engaged by any such party is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of this Agreement, or any applicable custodial agreement, Servicing
Agreement or sub-servicing agreement, as the case may be, such party (in the
case of a Servicer, to the extent required under the applicable Servicing
Agreement) shall cause a registered public accounting firm to provide an
attestation pursuant to this Section 3.16(b) or to such other applicable
agreement, for the applicable period immediately preceding such termination,
assignment or resignation, notwithstanding any such termination, assignment
or
resignation.
SECTION
3.17. Annual
Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 10 (with a 5 calendar day cure period) of
each
year, commencing in March 2009, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of any Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of any Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof. Promptly
after receipt of each such Officer’s Certificate, the Depositor shall review
such Officer’s Certificate and, if applicable, consult with each such party, as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of any Servicing
Function Participant, under such other applicable agreement. The Master Servicer
shall include all annual statements of compliance received by it from each
Servicer with its own annual statement of compliance to be submitted to the
Securities Administrator pursuant to this Section. In the event the Master
Servicer, the Securities Administrator or any Servicing Function Participant
engaged by any such party is terminated or resigns pursuant to the terms of
this
Agreement, or any applicable agreement in the case of a Servicing Function
Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 or to such applicable agreement,
as
the case may be, notwithstanding any such termination, assignment or
resignation.
74
SECTION
3.18. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master Servicer and the
Securities Administrator shall provide, and each such party shall cause any
Servicing Function Participant engaged by it to provide, to the Person who
signs
the Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 1 (with a ten-calendar day cure period), (or by such other date and cure
period specified in the applicable Servicing Agreement), 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,
if
applicable in the form provided by the related Servicing Agreement (each, a
“Back-Up
Certification”),
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or by
facsimile at 000-000-0000. In the event any such party or any Servicing Function
Participant engaged by such party is terminated or resigns pursuant to the
terms
of this Agreement, or any applicable sub-servicing agreement, as the case may
be, such party shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 3.18 with respect to the period of time it was subject
to this Agreement or any applicable sub-servicing agreement, as the case may
be.
Notwithstanding the foregoing, (i) the Master Servicer and the Securities
Administrator shall not be required to deliver a Back-Up Certification to each
other if both are the same Person and the Master Servicer is the Certifying
Person and (ii) the Master Servicer shall not be obligated to sign the
Xxxxxxxx-Xxxxx Certification in the event that it does not receive any Back-Up
Certification required to be furnished to it pursuant to this section or any
Servicing Agreement or custodial agreement.
SECTION
3.19. Reports
Filed with Securities and Exchange Commission.
(a) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust any Form 10-D required by the Exchange Act, in form and substance
as
required by the Exchange Act. The Securities Administrator shall file each
Form
10-D with a copy of the related Distribution Date Statement attached thereto.
Any disclosure in addition to the Distribution Date Statement that is required
to be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be reported by the parties set forth on Exhibit R to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next two paragraphs.
(ii) As
set
forth on Exhibit R hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to the Xxxxxxxxx Mortgage Securities Trust 2008-1
transaction shall be required to provide to the Securities Administrator and
the
Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit U hereto (an “Additional
Disclosure Notification”),
and
the Depositor will approve, as to form and substance, or disapprove, as the
case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
The
Seller will be responsible for any reasonable fees and expenses assessed or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure in Form 10-D pursuant to this paragraph;
provided that if the Additional Form 10-D Disclosure relates solely to the
Depositor, such fees and expenses shall be paid by the Depositor.
75
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward upon request
electronically a copy of the Form 10-D to the Depositor (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two Business Days
after receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-D,
the Securities Administrator shall be entitled to assume that such Form 10-D
is
in final form and the Securities Administrator may proceed with the execution
and filing of the Form 10-D. A duly authorized representative of the Master
Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in subsection (d)(ii) of this Section
3.19.
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a
final
executed copy of each Form 10-D filed by the Securities Administrator. Each
party to this Agreement acknowledges that the performance by the Master Servicer
and the Securities Administrator of their respective duties under this Section
3.19(a) related to the timely preparation, execution and filing of Form 10-D
is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Section 3.19(a). Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file such Form 10-D, where such failure results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D if the answer to the questions should be “no.” The Securities Administrator
shall be entitled to rely on such representations in preparing, executing and/or
filing any such report.
76
(b) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th
day
after the end of each fiscal year of the Trust in which a Form 10-K is required
to be filed 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 2009, the Securities Administrator 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 Securities Administrator
within the applicable time frames set forth in this Agreement and the related
Servicing Agreement, (i) an annual compliance statement for each Servicer,
the
Master Servicer, the Securities Administrator and any Servicing Function
Participant engaged by such parties (each, a “Reporting
Servicer”)
as
described under Section 3.17, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for each Reporting Servicer, as described
under Section 3.16(a), and (B) if each Reporting Servicer’s report on assessment
of compliance with servicing criteria described under Section 3.16(a) identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if each Reporting Servicer’s report on assessment of
compliance with servicing criteria described under Section 3.16(a) 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 each Reporting
Servicer, as described under Section 3.16(b), and (B) if any registered public
accounting firm attestation report described under Section 3.16(b) 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 as described in Section 3.18 (provided,
however,
that the
Securities Administrator, at its discretion, may omit from the Form 10-K any
annual compliance statement, assessment of compliance or attestation report
that
is not required to be filed with such Form 10-K pursuant to Regulation AB).
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 determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in the next two paragraphs.
(ii) As
set
forth on Exhibit S hereto, no later than March 10 (with a 5 calendar day cure
period) of each year that the Trust is subject to the Exchange Act reporting
requirements, commencing in 2009, (i) the parties to the Xxxxxxxxx Mortgage
Securities Trust 2008-1 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification 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 Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph; provided that if the Additional Form
10-K Disclosure relates solely to the Depositor, such fees and expenses shall
be
paid by the Depositor.
77
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward upon request
electronically a copy of the Form 10-K to the Depositor. Within three Business
Days after receipt of such copy, but no later than March 25th, the Depositor
shall notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. In the absence
of receipt of any written changes or approval, or if the Depositor does not
request a copy of a Form 10-K, the Securities Administrator shall be entitled
to
assume that such Form 10-K is in final form and the Securities Administrator
may
proceed with the execution and filing of the Form 10-K. A senior officer of
the
Master Servicer in charge of the master servicing function shall sign the Form
10-K. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K
needs to be amended, the Securities Administrator will follow the procedures
set
forth in subsection (d)(ii) of this Section 3.19. Promptly (but no later than
1
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K. The parties to this Agreement acknowledge that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.19(b) related to the timely preparation, execution and filing of
Form
10-K is contingent upon such parties (the Custodian and any Servicing Function
Participant) strictly observing all applicable deadlines in the performance
of
their duties under this Section 3.19(b), Section 3.18, Section 3.17, Section
3.16(a) and Section 3.16(b). Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iv) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than March 15th with respect
to
the filing of a report on Form 10-K, if the answer to the questions should
be
“no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
78
(c) Reports
Filed on Form 8-K.
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Securities Administrator shall prepare and
file on behalf of the Trust a 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 in Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit T to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next two
paragraphs.
(ii) As
set
forth on Exhibit T hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than close of business (New York City
time)
on the 2nd Business Day after the occurrence of a Reportable Event (i) the
parties to the Xxxxxxxxx Mortgage Securities Trust 2008-1 transaction shall
be
required to provide to the Securities Administrator and Depositor, to the extent
known by a responsible officer thereof, in XXXXX-compatible form (which may
be
Word or Excel documents easily convertible to XXXXX format), or in such other
form as otherwise agreed upon by the Securities Administrator and such party,
the form and substance of any Form 8-K Disclosure Information, if applicable,
together with an Additional Disclosure Notification 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. The Seller will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
in Form 8-K pursuant to this paragraph; provided that if the Additional Form
8-K
Disclosure Information relates solely to the Depositor, such fees and expenses
shall be paid by the Depositor.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward upon request
electronically a copy of the Form 8-K to the Depositor. Promptly, but no later
than the close of business on the third Business Day after the Reportable Event,
the Depositor shall notify the Securities Administrator in writing (which may
be
furnished electronically) of any changes to or approval of such Form 8-K. In
the
absence of receipt of any written changes or approval, or if the Depositor
does
not request a copy of a Form 8-K, the Securities Administrator shall be entitled
to assume that such Form 8-K is in final form and the Securities Administrator
may proceed with the execution and filing of the Form 8-K. A duly authorized
representative of the Master Servicer shall sign each Form 8-K filed by the
Securities Administrator. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in subsection (d)(ii) of this Section 3.19.
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will, make available on its internet website a
final executed copy of each Form 8-K filed by the Securities Administrator
or
filed by the Depositor and provided to the Securities Administrator for that
purpose. The parties to this Agreement acknowledge that the performance by
the
Master Servicer and the Securities Administrator of their respective duties
under this Section 3.19(c) related to the timely preparation, execution 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
3.19(c). Neither the Securities Administrator nor the Master Servicer shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto needed to prepare, arrange for execution or file such Form 8-K,
not
resulting from its own negligence, bad faith or willful misconduct.
79
(d) Delisting;
Amendments; Late Filings.
(i) On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, unless otherwise directed by the Depositor,
the Securities Administrator shall prepare and file a Form 15 relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed 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 Securities Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement and each Servicer will cooperate to prepare and
file a Form 12b-25 and a 10-D/A and 10-K/A, as applicable, pursuant to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, 10-D or 10-K needs to be amended, and such amendment includes any
Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or any
Form
8-K Disclosure Information or any amendment to such disclosure, the Securities
Administrator will promptly notify electronically the Depositor and such parties
will cooperate to prepare any necessary 8-KA, 10-D/A or 10-K/A. Any Form 15,
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a
duly
authorized representative or a senior officer in charge of master servicing,
as
applicable, of the Master Servicer. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Securities Administrator
of
their respective duties under this Section 3.19(d) related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K is contingent upon each such party performing its duties
under this Section. Neither the Master Servicer nor the Securities Administrator
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute 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 Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
80
SECTION
3.20. Additional
Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.21. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.20 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information as
the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, which information
is
available to such party without unreasonable effort or expense and within such
timeframe as may be reasonably requested, and (d) no amendment of this Agreement
shall be required to effect any such changes in the parties’ obligations as are
necessary to accommodate evolving interpretations of the provisions of
Regulation AB.
SECTION
3.22. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 (each, an “Item 1122 Responsible Party”) shall
indemnify and hold harmless the Securities Administrator, the Master Servicer,
the Depositor and the Seller and each of their directors, officers, employees,
agents, and affiliates from and against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any material misstatement or
material omission in any information, data or materials provided by such Item
1122 Responsible Party (or, in the case of the Securities Administrator or
Master Servicer, any material misstatement or material omission in (x) any
compliance certificate delivered by it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, (y) any assessment or attestation
delivered by or on behalf of it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, or (z) any Additional Form 10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
concerning the Securities Administrator or the Master Servicer and provided
by
either of them), or (c) the negligence, bad faith or willful misconduct of
such
Item 1122 Responsible Party in connection with its performance hereunder
relating to its obligations as an Item 1122 Responsible Party. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Securities Administrator, the Depositor or the Seller, then each
Item 1122 Responsible Party agrees that it shall contribute to the amount paid
or payable by the Securities Administrator, the Master Servicer, the Depositor
and the Seller as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer, the Depositor
or
the Seller in such proportion as is appropriate to reflect the relative fault
of
the Securities Administrator, the Master Servicer, the Depositor or the Seller
on the one hand and such Item 1122 Responsible Party on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
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SECTION
3.23. Amendments
to Master Servicing Guide and Correspondent Sellers Guide.
The
Seller and the Master Servicer hereby agree not to amend the Master Servicing
Guide or the Correspondent Sellers Guide with respect to the Mortgage Loans
(which are Securitized Loans (as defined therein)) which amendment would (i)
change the Servicer Remittance Date or date for remittance of any servicer
reports or monthly remittance advices, (ii) change the manner in which any
Servicer makes Advances, servicing advances or amounts to compensate for
Interest Shortfalls (iii) without prior written notice to the Rating Agencies
(unless such amendment corresponds to reporting criteria specified by any Rating
Agency), change the provisions relating to the modification of Mortgage Loans
by
a Servicer (including the reporting of data relating thereto by a Servicer
to
the Master Servicer in servicing reports and monthly remittance advices) in
connection with a loss mitigation strategy or (iv) otherwise have a material
adverse effect on the Trust or the Certificateholders, unless the party making
such amendment notifies the other party in writing of such amendment and, in
the
case of an amendment of the type described in clause (iv) such changes are
made
pursuant to the provisions of Section 12.01 hereof.
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SECTION
3.24. UCC.
The
Securities Administrator agrees to file continuation statements for any Uniform
Commercial Code financing statements identifying the Trust as debtor which
the
Depositor has informed the Securities Administrator in writing were filed on
the
Closing Date in connection with the Trust, provided that the Securities
Administrator receives the related filing information on a timely basis. The
Depositor shall file any financing statements or amendments thereto required
by
any change in the Uniform Commercial Code.
SECTION
3.25. Optional
and Required Purchases of Certain Mortgage Loans.
(a) Xxxxxxxxx,
in its capacity as a Servicer of a portion of the Mortgage Loans, shall have
the
right to purchase from the Trust any Mortgage Loan which as of the first day
of
a calendar quarter is delinquent in payment by 90 days or more or is an REO
Property, at a price equal to the Purchase Price; provided however (i) that
such
Mortgage Loan is still 90 days or more delinquent or is an REO Property as
of
the date of such purchase and (ii) this purchase option, if not theretofore
exercised, shall terminate on the date prior to the last day of the related
calendar quarter. This purchase option, if not exercised, shall not be
thereafter reinstated unless the delinquency is cured and the Mortgage Loan
thereafter again becomes 90 days or more delinquent or becomes an REO Property,
in which case the option shall again become exercisable as of the first day
of
the related calendar quarter.
(b) Xxxxxxxxx,
in its capacity as a Servicer, may not permit a Significant Modification to
a
Mortgage Loan that is not permitted by the related Mortgage Note. However,
Xxxxxxxxx, in its capacity as the Seller, may, but is not required to,
repurchase any Mortgage Loan as to which the Mortgagor has requested a
Significant Modification that is not then permitted under the related Mortgage
Note if such Mortgagor has a satisfactory payment history under such Mortgage
Loan and meets the credit standards of the Seller for the loan program selected
(a “Significant
Modification Loan”).
A
“Significant
Modification”
shall
mean any modification to the interest rate of the greater of (i) 0.25% added
or
subtracted from the existing rate and (ii) a change equal to the product of
(a)
5% and (b) the annual existing interest rate thereon, which is not provided
for
in the related Mortgage Note. The purchase price for any repurchase pursuant
to
this Section 3.25(b) shall be the applicable Purchase Price. In order to
exercise its repurchase rights hereunder, the Seller shall deliver to the Master
Servicer and the Trustee an Officer’s Certificate identifying the Mortgage Loan
to be repurchased and certifying that (i) such Mortgage Loan is a Significant
Modification Loan, and (ii) that the Significant Modification Loan will be
entered into on the date of such repurchase. In connection with any repurchase
pursuant to this Section 3.25(b), the Seller shall pay to the Trust the amount
of any tax imposed on the Trust or any REMIC created hereby as a result of
such
repurchase.
(c) If
Xxxxxxxxx chooses to exercise its option to repurchase any Mortgage Loan
pursuant to Section 3.25(b) hereof, then no later than the fourth Business
Day
prior to each Distribution Date, Xxxxxxxxx will provide to the Master Servicer
a
list identifying all Mortgage Loans that became Significant Modification Loans
during the related Due Period for which Xxxxxxxxx chooses to exercise its option
to repurchase. On the third Business Day prior to each Distribution Date,
provided that it has received such list from Xxxxxxxxx, the Master Servicer
shall notify Xxxxxxxxx of the current outstanding principal balance and accrued
interest for each such Mortgage Loan. No later than 1:00 PM Eastern Time on
the
second Business Day prior to each Distribution Date, Xxxxxxxxx shall purchase
each such Significant Modification Loan, at the applicable Purchase Price and
shall remit such Purchase Price to the Master Servicer for deposit in the
Distribution Account. If at any time Xxxxxxxxx remits to the Master Servicer
a
payment for deposit in the Distribution Account covering the amount of the
Purchase Price for a Mortgage Loan of the type set forth in clause (b) above,
and Xxxxxxxxx provides to the Trustee a certification signed by a Servicing
Officer stating that the amount of such payment has been deposited in the
Distribution Account, then the Trustee shall execute the assignment of such
Mortgage Loan at the request of Xxxxxxxxx without recourse to Xxxxxxxxx which
shall succeed to all the Trust’s and/or the Trustee’s right, title and interest
in and to such Mortgage Loan, and all security and documents relative thereto.
Such assignment shall be an assignment outright and not for security. Xxxxxxxxx
will thereupon own such Mortgage Loan, and all such security and documents,
free
of any further obligation to the Trust, the Trustee or the Certificateholders
with respect thereto.
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SECTION
3.26. Realization
upon Troubled Mortgage Loans.
The
Master Servicer shall have the right to cause a Servicer to sell or work out
any
Mortgage Loan as to which the Master Servicer reasonably believes that default
in payment is likely, provided,
however,
that,
with respect to any such sale of a Mortgage Loan by a Servicer, the related
sale
price shall be no less than the Stated Principal Balance of such Mortgage Loan
as of the last day of the Due Period immediately preceding the date of such
sale
plus
accrued
interest thereon through such sale date. Any and all proceeds from such a sale
shall be deemed to be Liquidation Proceeds hereunder and any such Mortgage
Loan
which has been sold shall be deemed a Liquidated Mortgage Loan
hereunder.
SECTION
3.27. Closing
Certificate and Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee, and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by the
Master Servicer and the enforceability thereof.
SECTION
3.28. Liabilities
of the Master Servicer.
The
Master Servicer shall be liable in accordance herewith only to the extent of
the
obligations specifically imposed upon and undertaken by it herein.
SECTION
3.29. Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement.
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(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.30. Indemnification
of the Trustee, the Seller, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.22 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred
by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that
with
respect to any such claim or legal action (or pending or threatened claim or
legal action), an Indemnified Person shall have given the Master Servicer and
the Depositor written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Indemnified Person’s failure to give such notice shall not affect the
Indemnified Person’s right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Master Servicer or the
Securities Administrator and the termination of this Agreement.
(b) The
Trust
will indemnify any Indemnified Person for any loss, liability or expense of
any
Indemnified Person not otherwise indemnified by the Master Servicer as referred
to in Subsection (a) above.
(c) In
addition to any indemnity required pursuant to Section 3.22 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.19, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.19
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.19, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), an Indemnified Person shall have given the Securities Administrator
written notice thereof promptly after such Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Indemnified
Person’s failure to give such notice shall not affect the Indemnified Person’s
right to indemnification hereunder. This indemnity shall survive the resignation
or removal of the Trustee, the Master Servicer or the Securities Administrator
and the termination of this Agreement.
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SECTION
3.31. Limitations
on Liability of the Master Servicer and Others; Indemnification of Trustee
and
Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.30:
(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indemnified Persons,
the
Depositor, the Trust or the Certificateholders for taking any action or for
refraining from taking any action in good faith pursuant to this Agreement,
or
for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodian (including for such purpose, the Trustee acting in
its
capacity as Custodian) and any director, officer, employee or agent of the
Master Servicer, the Trustee or the Custodian shall be indemnified by the Trust
and held harmless thereby against any loss, liability or expense (except as
otherwise provided herein with respect to expenses) (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or any Servicing Agreement or the transactions contemplated hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the Servicer thereunder), other than (i)
with
respect to the Master Servicer only, any such loss, liability or expense related
to the Master Servicer’s failure to perform its duties in compliance with this
Agreement or (ii) with respect to the Master Servicer or Custodian only, any
such loss, liability or expense incurred by reason of the Master Servicer’s or
the Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its own duties hereunder or by reason of reckless disregard
of
its own obligations and duties hereunder or under a custodial
agreement.
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Trust and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Subsection 3.31(d) shall affect the Master Servicer’s obligation
to supervise, or to take such actions as are necessary to ensure, the servicing
and administration of the Mortgage Loans pursuant to Subsection
3.01(a).
86
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust might incur as a result of such course
of
action by reason of the condition of the Mortgaged Properties but shall give
notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of any Servicer,
except as otherwise expressly provided herein.
SECTION
3.32. Master
Servicer Not to Resign.
Except
as
provided in Section 3.34, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except upon a determination that
any
such duties hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 7.02 hereof.
The Trustee shall notify each Rating Agency of the resignation of the Master
Servicer.
SECTION
3.33. Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee, plus
the
portion of investment income on amounts on deposit in the Distribution Account
to which the Master Servicer is entitled hereunder. If the successor master
servicer does not agree that the proposed compensation is fair, such successor
master servicer shall obtain two quotations of market compensation from third
parties actively engaged in the servicing of single-family mortgage loans;
provided,
however,
that
Xxxxxxxxx, as a Servicer of a substantial portion of the Mortgage Loans, shall
have the right, but not the obligation, to be appointed successor master
servicer in the event that the Trustee, in its sole discretion, decides not
to
assume the duties of the Master Servicer itself; and provided,
further,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
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SECTION
3.34. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of Xxxxxxxxx in its capacity as a Servicer of a substantial
portion of the Mortgage Loans, to be given in its sole discretion, and provided
further that: (i) the purchaser or transferee accepting such assignment and
delegation (a) shall be a Person which shall be qualified to service mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less
than
$10,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (c) shall be reasonably satisfactory to Xxxxxxxxx and the Trustee
(as evidenced in writing signed by Xxxxxxxxx and the Trustee); and (d) shall
execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant
and
condition to be performed or observed by it as master servicer under this
Agreement, any custodial agreement from and after the effective date of such
agreement; (ii) each Rating Agency shall be given prior written notice of the
identity of the proposed successor to the Master Servicer and each Rating
Agency’s ratings of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the
Trustee an Officer’s Certificate and an Independent Opinion of Counsel,
(delivered at the Master Servicer’s expense) each stating that all conditions
precedent to such action under this Agreement have been completed and such
action is permitted by and complies with the terms of this Agreement. No such
assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
SECTION
3.35. Reporting
Requirements of the Commission.
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D, 10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01) in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts.
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain one or more custodial accounts (the “Servicing
Accounts”)
in
accordance with the applicable Servicing Agreement, with records to be kept
with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 48 hours (or as of such other time specified in the
related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received
by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds and advances made from the Servicer’s own funds (less, in the case of
each Servicer, the applicable servicing compensation, in whatever form and
amounts as permitted by the applicable Servicing Agreement) and all other
amounts to be deposited in each such Servicing Account. The Servicer is hereby
authorized to make withdrawals from and deposits to the related Servicing
Account for purposes required or permitted by this Agreement and the applicable
Servicing Agreement. For the purposes of this Agreement, Servicing Accounts
shall also include such other accounts as the Servicer maintains for the escrow
of certain payments, such as taxes and insurance, with respect to certain
Mortgaged Properties. Each Servicing Agreement sets forth the criteria for
the
segregation, maintenance and investment of each related Servicing Account,
the
contents of which are acceptable to the parties hereto as of the date hereof
and
changes to which shall not be made unless such changes are made in accordance
with the provisions of Section 12.01 hereof.
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(b) [Reserved];
(c) To
the
extent provided in the related Servicing Agreement and subject to this Article
IV, on or before each Servicer Remittance Date, each Servicer shall withdraw
or
shall cause to be withdrawn from the related Servicing Accounts and shall
immediately deposit or cause to be deposited in the Distribution Account amounts
representing the following collections and payments (other than with respect
to
principal of or interest on the Mortgage Loans due on or before the Cut-off
Date) with respect to each of the Mortgage Loans it is servicing:
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof advanced
by the Servicers pursuant to the Servicing Agreements which were due on or
before the related Due Date but net of the amount thereof comprising the
Servicing Fees;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicers
with
respect to such Mortgage Loans in the related Prepayment Period, with interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees and any Recoveries received in the related Prepayment
Period;
(iii) Principal
Prepayments in part received by the Servicers for such Mortgage Loans in the
related Prepayment Period;
(iv) Prepayment
Penalty Amounts, if any, and only if required under the related Servicing
Agreement; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the related Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer, as successor
servicer, or a Servicer for Advances which have been recovered by subsequent
collection from the related Mortgagor; to reimburse the Master Servicer, as
successor servicer, or a Servicer for Capitalization Reimbursement Amounts;
to
remove amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at the
termination of this Agreement in accordance with Section 10.01. As provided
in
Sections 4.01(c) and 4.02(b), certain amounts otherwise due to the Servicers
may
be retained by them and need not be deposited in the Distribution
Account.
89
Notwithstanding
anything herein to the contrary, the Master Servicer shall not be responsible
for verifying the accuracy of any Prepayment Penalty.
SECTION
4.02. Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of the
Trustee, for the benefit of the Trust and the Certificateholders, the
Distribution Account as a segregated account or accounts, each of which shall
be
an Eligible Account. If an existing Distribution Account ceases to be an
Eligible Account, the Securities Administrator shall establish a new
Distribution Account that is an Eligible Account within ten (10) days and
transfer all funds and investment property on deposit in such existing
Distribution Account into the new Distribution Account. The Distribution Account
shall constitute a trust account of the Trust segregated on the books of the
Securities Administrator and held by the Securities Administrator in trust
in
its Corporate Trust Office, and the Distribution Account and the funds deposited
therein shall not be subject to, and shall be protected from, all claims, liens,
and encumbrances of any creditors or depositors of the Trustee, the Securities
Administrator or the Master Servicer (whether made directly, or indirectly
through a liquidator or receiver of the Trustee, the Securities Administrator
or
the Master Servicer). The amount at any time credited to the Distribution
Account shall be (i) fully insured by the FDIC to the maximum coverage provided
thereby or (ii) invested by the Securities Administrator, in Permitted
Investments, in accordance with Section 4.02(c). All Permitted Investments
shall
mature or be subject to redemption or withdrawal on or before, and shall be
held
until, the immediately succeeding Distribution Date. With respect to the
Distribution Account and the funds deposited therein, the Securities
Administrator shall take such action as may be necessary to ensure that the
Trust and the Certificateholders shall be entitled to the priorities afforded
to
such a trust account (in addition to a claim against the estate of the
Securities Administrator or the Trustee) as provided by 12 U.S.C. § 92a(e), and
applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations,
if
applicable. The Securities Administrator, Trustee or their affiliates are
permitted to receive additional compensation that could be deemed to be in
the
their economic self-interest for (i) serving as investment adviser,
administrator, servicing agent, custodian or sub-custodian with respect to
certain of the Permitted Investments, (ii) using affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. The Master Servicer and the Securities
Administrator will deposit in the Distribution Account as identified by the
Master Servicer or the Securities Administrator and as received by the Master
Servicer or the Securities Administrator, the following amounts:
(i) any
amounts withdrawn from a Servicing Account pursuant to Section
4.01(c);
90
(ii) any
Advance and any Compensating Interest Payments required to be made by the Master
Servicer, as successor servicer, to the extent required but not made by a
Servicer;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or on behalf
of the Master Servicer or which were not deposited in a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller under
this Agreement, any Substitution Adjustments pursuant to Section 2.03 of this
Agreement, the Purchase Price with respect to any Mortgage Loans purchased
by
Xxxxxxxxx pursuant to Section 3.25, and all proceeds of any Mortgage Loans
or
property acquired with respect thereto repurchased by the Xxxxxxxxx (or its
assignee) pursuant to Section 10.01;
(v) any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vi) any
other
amounts received by or on behalf of the Master Servicer or the Securities
Administrator and required to be deposited in the Distribution Account pursuant
to this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the Trust
and Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges (but including, in the
case of Xxxxxxxxx, all Prepayment Penalty Amounts) and (ii) the items enumerated
in Subsections 4.03(a)(i), (ii), (iii), (iv), (vi), (vii), (ix), (x) and with
respect to the Securities Administrator item (xi), need not be credited by
the
Master Servicer or the related Servicer to the Distribution Account. In the
event that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Securities Administrator, upon receipt of a written request therefor signed
by a
Servicing Officer of the Master Servicer, shall promptly transfer such amount
to
the Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The
amount
at any time credited to the Distribution Account shall be invested, in the
name
of the Trustee, or its nominee, for the benefit of the Certificateholders,
in
Permitted Investments as follows. All net earnings on Permitted Investments
shall be for the benefit of Xxxxxxxxx, in its capacity as Servicer, except
that
the investment income with respect to the investment of funds in the
Distribution Account made on the Business Day prior to each Distribution Date
shall be for the benefit of the Master Servicer. All Permitted Investments
made
for the benefit of Xxxxxxxxx shall be made at the written direction of Xxxxxxxxx
to the Master Servicer (or, if no such written direction is received, in
investments of the type specified in clause (vi) of the definition of Permitted
Investments), shall mature or be subject to redemption or withdrawal on or
before, and shall be held until, the Business Day prior to the next succeeding
Distribution Date. Any and all investment earnings from such Permitted
Investments shall be paid to Xxxxxxxxx, and the risk of loss of moneys resulting
from such investments shall be borne by and be the risk of Xxxxxxxxx. Xxxxxxxxx
shall deposit the amount of any such loss in the Distribution Account within
two
Business Days of receipt of notification of such loss but not later than the
next succeeding Distribution Date.
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All
Permitted Investments made for the benefit of the Master Servicer shall be
in
such Permitted Investments as shall be selected by the Master Servicer and
shall
mature (and be subject to withdrawal and be held until) the next succeeding
Distribution Date. Any and all investment earnings from such Permitted
Investments shall be paid to the Master Servicer and the risk of loss on such
Permitted Investments shall be borne by and be the risk of the Master Servicer.
The Master Servicer shall deposit the amount of any such loss in the
Distribution Account no later than the next succeeding Distribution
Date.
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Master Servicer will, from time to time on demand of a Servicer, the Securities
Administrator, or for its own account as set forth below, make or cause to
be
made such withdrawals or transfers from the Distribution Account, in the case
of
a demand by a Servicer, as the applicable Servicer has designated for such
transfer or withdrawal pursuant to the applicable Servicing Agreement, or in
the
case of a demand by the Securities Administrator as the Securities Administrator
has demanded pursuant hereto, or as the Master Servicer has determined to be
appropriate in accordance herewith, for the following purposes:
(i) to
reimburse the Master Servicer, as successor servicer, or any Servicer for any
Advance (excluding Capitalization Reimbursement Amounts) of its own funds or
of
such Servicer’s own funds, the right of the Master Servicer or a Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts received
on a particular Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Advance was made;
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or such Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds relating
to a particular Mortgage Loan for insured expenses incurred with respect to
such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(iv) to
pay
the Master Servicer or any Servicer, as appropriate, from Liquidation Proceeds
or Insurance Proceeds received in connection with the liquidation of any
Mortgage Loan, the amount which it or such Servicer would have been entitled
to
receive under subclause (viii) of this Subsection 4.03(a) as servicing
compensation on account of each defaulted scheduled payment on such Mortgage
Loan if paid in a timely manner by the related Mortgagor;
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(v) to
pay
the Master Servicer or any Servicer from the Purchase Price for any Mortgage
Loan, the amount which it or such Servicer would have been entitled to receive
under subclause (viii) of this Subsection (a) as servicing
compensation;
(vi) to
reimburse the Master Servicer, as successor servicer, or any Servicer for
servicing related advances of funds (excluding Capitalization Reimbursement
Amounts), the right to reimbursement pursuant to this subclause being limited
to
amounts received on the related Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such servicing advances
were
made;
(vii) to
reimburse the Master Servicer, as successor servicer, or any Servicer for any
Advance or Servicing Advance, after a Realized Loss has been allocated with
respect to the related Mortgage Loan if the Advance or Servicing Advance has
not
been reimbursed pursuant to clauses (i) and (vi);
(viii) to
pay
the Master Servicer its monthly Master Servicing Fee and any investment income
and other additional servicing compensation payable pursuant to Section
3.14;
(ix) to
reimburse the Master Servicer or the Securities Administrator for any expenses
recoverable by the Master Servicer or the Securities Administrator pursuant
to
Sections 3.03 and 3.31;
(x) to
pay
Xxxxxxxxx, as a Servicer, any Prepayment Penalty Amounts and any earnings
payable pursuant to Section 4.02(c), and to reimburse or pay any Servicer any
such amounts as are due thereto under the applicable Servicing Agreement and
have not been retained by or paid to the Servicer, to the extent provided in
the
related Servicing Agreement;
(xi) to
reimburse the Trustee and the Securities Administrator for expenses, costs
and
liabilities incurred by or reimbursable to it from funds of the Trust pursuant
to Sections 3.30, 3.31 or 8.05 (including those related to the Custodian, to
the
extent not paid by Xxxxxxxxx), and to reimburse the Trustee for any fees, costs
and expenses costs incurred by or reimbursable to it pursuant to Section
2.03(a), 7.01(b), 8.02, 8.05 or 8.07, to the extent not otherwise reimbursed
to
it;
(xii) to
make
distributions of Retained Interest to the Retained Interest Holder on each
Distribution Date;
(xiii) to
pay to
Xxxxxxxxx (in its capacity as a Servicer) all investment earnings on amounts
on
deposit in the Distribution Account to which it is entitled under Section
4.02(c);
(xiv) to
remove
amounts deposited in error;
(xv) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
and
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(xvi) to
reimburse itself for any unreimbursed Capitalization Reimbursement Amounts
made
by it pursuant to Section 5.05 solely from collections on account of principal
in the related Loan Group.
(b) In
addition, on or before the Business Day immediately preceding each Distribution
Date, the Master Servicer shall deposit in the Distribution Account (or remit
to
the Securities Administrator for deposit therein) any Advances or Compensating
Interest Payments, to the extent required but not made by the related Servicer
and required to be made by the Master Servicer, as successor servicer, with
respect to the Mortgage Loans.
(c) The
Securities Administrator or the Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (vii), inclusive, (ix) and (x) or with
respect to any such amounts which would have been covered by such subclauses
had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account under Section 4.02(b).
(d) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Securities
Administrator shall obtain and verify certain information and documentation
from
the other parties hereto, including, but not limited to, each such party's
name,
address and other identifying information.
(e) On
each
Distribution Date, the Securities Administrator shall distribute the aggregate
Available Funds to the Holders of the Certificates in accordance with Section
5.01.
ARTICLE
V
FLOW
OF FUNDS
SECTION
5.01. Distributions.
(a) On
each
Distribution Date and after making any withdrawals from the Distribution Account
pursuant to Section 4.03(a), the Securities Administrator shall withdraw funds
on deposit in the Distribution Account to the extent of Available Funds for
each
Loan Group for such Distribution Date and, based on the Distribution Date
Statement, make the following disbursements and transfers in the following
order
of priority:
(i) the
Available Funds for Loan Group 1 shall be distributed on each Distribution
Date
in the following order of priority:
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(A)
|
to
the Holders of the Class A-R Certificates, the Class 1A-1 Certificates,
the Class 1A-2 Certificates and the Class 1-AX Certificates, the
related
Interest Distributable Amounts for such date, pro
rata
(based on the Interest Distributable Amounts to which each such Class
is
entitled); and
|
94
|
(B)
|
from
the Principal Distribution Amount for Loan Group 1 for such Distribution
Date, an amount equal to the Senior Principal Distribution Amount
for Loan
Group 1 for that Distribution Date, as
follows:
|
first,
to the
Holder of Class A-R Certificate, until the Class Certificate Principal Balance
of such Class is reduced to zero; and
second,
to the
Holders of the Class 1A-1 Certificates and the Class 1A-2 Certificates,
concurrently, in proportion to their outstanding Class Certificate Principal
Balances, until the respective Class Certificate Principal Balance of each
such
Class is reduced to zero;
(ii) the
Available Funds for Loan Group 2 shall be distributed on each Distribution
Date
in the following order of priority:
|
(A)
|
to
the Holders of the Class 2A-1 Certificates, the Class 2A-2 Certificates
and Class 2-AX Certificates, the related Interest Distributable Amounts
for such date, pro
rata
(based on the Interest Distributable Amounts to which each such Class
is
entitled); and
|
|
(B)
|
from
the Principal Distribution Amount for Loan Group 2 for such Distribution
Date, an amount equal to the Senior Principal Distribution Amount
for Loan
Group 2 for that Distribution Date, to the Holders of the Class 2A-1
Certificates and the Class 2A-2 Certificates, concurrently, in proportion
to their outstanding Class Certificate Principal Balances, until
the
respective Class Certificate Principal Balance of each such Class
is
reduced to zero;
|
(iii) the
Available Funds for Loan Group 3 shall be distributed on each Distribution
Date
in the following order of priority:
|
(A)
|
to
the Holders of the Class 3A-1 Certificates, Class 3A-2 Certificates
and
Class 3-AX Certificates, the related Interest Distributable Amounts
for
such date, pro
rata
(based on the Interest Distributable Amounts to which each such Class
is
entitled); and
|
|
(B)
|
from
the Principal Distribution Amount for Loan Group 3 for such Distribution
Date, an amount equal to the Senior Principal Distribution Amount
for Loan
Group 3 for that Distribution Date, to the Holders of the Class 3A-1
Certificates and the Class 3A-2 Certificates, concurrently, in proportion
to their outstanding Class Certificate Principal Balances, until
the
respective Class Certificate Principal Balance of each such Class
is
reduced to zero;
|
95
(iv) the
Available Funds for Loan Group 4 shall be distributed on each Distribution
Date
in the following order of priority:
|
(A)
|
to
the Holders of the Class 4A-1 Certificates, Class 4A-2 Certificates
and
Class 4-AX Certificates, the related Interest Distributable Amounts
for
such date, pro
rata
(based on the Interest Distributable Amounts to which each such Class
is
entitled); and
|
|
(B)
|
from
the Principal Distribution Amount for Loan Group 4 for such Distribution
Date, an amount equal to the Senior Principal Distribution Amount
for Loan
Group 4 for that Distribution Date, to the Holders of the Class 4A-1
Certificates and the Class 4A-2 Certificates, concurrently, in proportion
to their outstanding Class Certificate Principal Balances, until
the
respective Class Certificate Principal Balance of each such Class
is
reduced to zero;
|
(v) the
Available Funds for each Loan Group remaining after giving effect to the
distributions specified in subsections (i) through (iii) above will be
distributed to the Certificateholders in the following order of
priority:
|
(A)
|
to
the Holders of the Class B-1 Certificates, the related Interest
Distributable Amount for that date;
|
|
(B)
|
to
the Holders of the Class B-1 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to
zero;
|
|
(C)
|
to
the Holders of the Class B-2 Certificates, the related Interest
Distributable Amount for that date;
|
|
(D)
|
to
the Holders of the Class B-2 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to
zero;
|
|
(E)
|
to
the Holders of the Class B-3 Certificates, the related Interest
Distributable Amount for that date;
|
|
(F)
|
to
the Holders of the Class B-3 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to
zero;
|
96
|
(G)
|
to
the Holders of the Class B-4 Certificates, the related Interest
Distributable Amount for that date;
|
|
(H)
|
to
the Holders of the Class B-4 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to
zero;
|
|
(I)
|
to
the Holders of the Class B-5 Certificates, the related Interest
Distributable Amount for that date;
|
|
(J)
|
to
the Holders of the Class B-5 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to
zero;
|
|
(K)
|
to
the Holders of the Class B-6 Certificates, the related Interest
Distributable Amount for that date;
|
|
(L)
|
to
the Holders of the Class B-6 Certificates, an amount allocable to
principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
and
|
|
(M)
|
to
the Holder of the Class A-R Certificate, any Available Funds then
remaining.
|
(b) Amounts
to be paid to the Holders of a Class of Certificates pursuant to Section 5.01(a)
shall be payable with respect to all Certificates of that Class, pro
rata,
based
on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) [Reserved]
(d) On
each
Distribution Date, the Interest Distributable Amounts for the Classes of Senior
Certificates and Subordinate Certificates on such Distribution Date shall be
reduced proportionately by Net Interest Shortfalls based on (A) in the case
of
the Senior Certificates, the Interest Distributable Amount otherwise
distributable thereon and (B) in the case of the Subordinate Certificates,
interest accrued at the related Subordinate Certificate Pass-Through Rate on
the
related Apportioned Principal Balance of each such Class, in each case before
taking into account any reduction in those amounts due to such Net Interest
Shortfalls; provided,
however,
that on
any Distribution Date after the Senior Termination Date for a Loan Group, Net
Interest Shortfalls for that Loan Group will be allocated to the Classes of
Subordinate Certificates based on the amount of interest each such Class of
Subordinate Certificates would otherwise be entitled to receive on such
Distribution Date.
97
(e) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(v) above, if with
respect to any Class of Subordinate Certificates on any Distribution Date the
sum of the related Class Subordination Percentages of such Class and of all
other Classes of Subordinate Certificates which have a higher numerical Class
designation than such Class (the “Applicable
Credit Support Percentage”)
is
less than the Original Applicable Credit Support Percentage for such Class,
no
distribution of Principal Prepayments will be made to any such Classes (the
“Restricted
Classes”)
and
the amount of such Principal Prepayment otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates having lower numerical Class designations than such Class,
pro
rata,
based
on the Class Certificate Principal Balances of the respective Classes
immediately prior to such Distribution Date and shall be distributed in the
sequential order provided in Section 5.01(a)(v) above.
(f) (i)
Notwithstanding the priority and allocation set forth in Section 5.01(a)(i)
through (iii) above, on each Distribution Date prior to the Senior Credit
Support Depletion Date but after the date on which the aggregate Class
Certificate Principal Balance of any Class of the Senior Certificates has been
reduced to zero, 100% of the Principal Prepayments on the Mortgage Loans in
the
Loan Group related to such retired Class of Senior Certificates otherwise
distributable on each Class of Subordinate Certificates pursuant to Section
5.01(a)(v), in reverse order of priority, shall be distributed as principal
to
the Senior Certificates remaining outstanding pursuant to Section 5.01(a) until
the Class Certificate Principal Balances thereof have been reduced to zero,
provided that on such Distribution Date either clause (i) or (ii) in the
definition of the Two Times Test has not been met. On each Distribution Date
on
which any two or more of the Group 1 Certificates, Group 2 Certificates, Group
3
Certificates or Group 4 Certificates remain outstanding, any amounts
distributable pursuant to this Section 5.01(f)(i) shall be distributed in
proportion to the aggregate Class Certificate Principal Balances of such
remaining Classes of Senior Certificates immediately prior to such Distribution
Date.
(ii) (A) On
any
Distribution Date on which any of the Group 1 Certificates, Group 2
Certificates, Group 3 Certificates or Group 4 Certificates constitutes an
Undercollateralized Group, all amounts otherwise distributable as Available
Funds on the Subordinate Certificates, in reverse order of priority (or,
following the Senior Credit Support Depletion Date, such other amounts described
in the immediately following sentence), will be distributed as principal to
the
Senior Certificates of such Undercollateralized Group pursuant to Section
5.01(a) first,
up to
the sum of the Accrued Interest Amount and the Principal Deficiency Amount
for
the related Undercollateralized Group (such distribution, an “Undercollateralization
Distribution”)
and
second,
to pay
to the Subordinate Certificates and the Class A-R Certificate in the same order
and priority as provided in Section 5.01(a)(v). In the event that any Group
1
Certificates, Group 2 Certificates, Group 3 Certificates or Group 4 Certificates
constitutes an Undercollateralized Group on any Distribution Date following
the
Senior Credit Support Depletion Date, Undercollateralization Distributions
will
be made from any Available Funds for a Loan Group not related to an
Undercollateralized Group remaining after all required amounts have been
distributed to the related Class of Senior Certificates. Undercollateralization
Distributions will be applied first
to pay
accrued but unpaid interest, if any, and second
to pay
principal in the same priority and allocation provided in Section
5.01(a).
98
(B) If
on any
Distribution Date any two or more of the Group 1 Certificates, Group 2
Certificates, Group 3 Certificates or Group 4 Certificates are
Undercollateralized Groups, the distribution described in paragraph (ii)(A)
above will be made, in the case of Accrued Interest Amounts, pro
rata
based
upon such Accrued Interest Amounts, and, in the case of Principal Deficiency
Amounts, in proportion to the amount by which the aggregate Class Certificate
Principal Balance of each Class of Senior Certificates, after giving effect
to
distributions pursuant to Section 5.01(a) on such Distribution Date, exceeds
the
Loan Group Balance of the related Loan Group for such Distribution
Date.
(g) Distributions
on Physical Certificates.
The
Securities Administrator shall make distributions in respect of a Distribution
Date to each Certificateholder of record on the related Record Date (other
than
as provided in Section 10.01 hereof respecting the final distribution), in
the
case of Certificateholders of the Physical Certificates, by check or money
order
mailed to such Certificateholder at the address appearing in the Certificate
Register, or by wire transfer. Distributions among Certificateholders of a
Class
shall be made in proportion to the Percentage Interests evidenced by the
Certificates of that Class held by such Certificateholders.
(h) Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Securities Administrator, Trustee, the Depositor
or
the Seller shall have any responsibility therefor.
SECTION
5.02. [Reserved]
SECTION
5.03. Allocation
of Realized Losses.
(a) On
or
prior to each Determination Date, the Securities Administrator shall aggregate
the loan-level information provided by the Master Servicer with respect to
the
total amount of Realized Losses, if any, with respect to the Mortgage Loans
in
each Loan Group for the related Distribution Date and include such information
in the Distribution Date Statement.
(b) Realized
Losses with respect to each Loan Group shall be allocated on any Distribution
Date as follows:
first,
to the
Subordinate Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinate Certificates with the
highest numerical Class designation) until the Class Certificate Principal
Balance of each such Class is reduced to zero; and
second,
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(A) with
respect to Loan Group 1, to the Class 1A-1, Class 1A-2 and Class A-R
Certificates, pro
rata,
until
the Class Certificate Principal Balance of each such Class is reduced to zero;
provided,
however,
that any
such Realized Losses that would otherwise be allocated to the Class 1A-1
Certificates shall instead be allocated to the Class 1A-2 Certificates until
the
Class Certificate Principal Balance of the Class 1A-2 Certificates has been
reduced to zero;
(B) with
respect to Loan Group 2, to the Class 2A-1 and Class 2A-2 Certificates,
pro
rata,
until
the Class Certificate Principal Balance of each such Class is reduced to zero;
provided,
however,
that any
such Realized Losses that would otherwise be allocated to the Class 2A-1
Certificates shall instead be allocated to the Class 2A-2 Certificates until
the
Class Certificate Principal Balance of the Class 2A-2 Certificates has been
reduced to zero;
(C) with
respect to Loan Group 3, to the Class 3A-1 and Class 3A-2 Certificates,
pro
rata,
until
the Class Certificate Principal Balance of each such Class is reduced to zero;
provided,
however,
that any
such Realized Losses that would otherwise be allocated to the Class 3A-1
Certificates shall instead be allocated to the Class 3A-2 Certificates until
the
Class Certificate Principal Balance of the Class 3A-2 Certificates has been
reduced to zero; and
(D) with
respect to Loan Group 4, to the Class 4A-1 and Class 4A-2 Certificates,
pro
rata,
until
the Class Certificate Principal Balance of each such Class is reduced to zero;
provided,
however,
that any
such Realized Losses that would otherwise be allocated to the Class 4A-1
Certificates shall instead be allocated to the Class 4A-2 Certificates until
the
Class Certificate Principal Balance of the Class 4A-2 Certificates has been
reduced to zero.
(c) The
Class
Certificate Principal Balance of the Class of Subordinate Certificates then
outstanding with the highest numerical Class designation shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Certificate Principal Balances of all outstanding Classes of Certificates
(after giving effect to the distribution of principal and the allocation of
Realized Losses on such Distribution Date) exceeds the aggregate of the Stated
Principal Balances of all the Mortgage Loans for the following Distribution
Date.
(d) Any
Realized Loss allocated to a Class of Certificates or any reduction in the
Class
Certificate Principal Balance of a Class of Certificates pursuant to Section
5.03(b) or (c) shall be allocated among the Certificates of such Class,
pro
rata,
in
proportion to their respective Certificate Principal Balances.
(e) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b)
or
(c) shall be accomplished by reducing the Certificate Principal Balance thereof
immediately following the distributions made on the related Distribution Date
in
accordance with the definition of “Certificate Principal Balance.”
100
SECTION
5.04. Statements.
(a) Concurrently
with each distribution to Certificateholders, the Securities Administrator
shall
make available to each Certificateholder, the Seller, the Master Servicer,
the
Trustee and the Rating Agencies, a statement based, as applicable, on loan-level
information provided to it by the Master Servicer and the Servicers (the
“Distribution
Date Statement”)
as to
the distributions to be made or made, as applicable, on such Distribution Date.
The Distribution Date Statement shall include the following:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to interest;
(iii) the
Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and
Subordinate Prepayment Percentage with respect to each Loan Group for the
following Distribution Date;
(iv) the
aggregate amount of servicing compensation received by each Servicer during
the
related Due Period;
(v) the
aggregate amount of Advances for the related Due Period and the amount of
unreimbursed Advances as reported by each Servicer;
(vi) the
Loan
Group Balance and related Net WAC for each Loan Group at the Close of Business
at the end of the related Due Period;
(vii) [reserved].
(viii) the
aggregate Principal Balance of the One-Month LIBOR Indexed, Six-Month LIBOR
Indexed, One-Year LIBOR Indexed and One-Year MTA Indexed Mortgage Loans at
the
Close of Business at the end of the related Due Period;
(ix) the
amount of the Master Servicer Fees paid to or retained by the Master
Servicer;
(x) the
aggregate amount of Servicing Fees paid to or retained by the
Servicers;
(xi) to
the
extent that such amounts are paid out of the Distribution Account, the amount
of
fees, expenses or indemnification amounts paid by the Trust with an
identification of the general purpose of such amounts and the party receiving
such amounts;
(xii) for
each
Loan Group, the number, weighted average remaining term to maturity, weighted
average life and weighted average Loan Rate of the related Mortgage Loans as
of
the related Due Date;
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(xiii) the
number and aggregate unpaid principal balance of Mortgage Loans, in the
aggregate and for each Loan Group, using the “MBA” method (a) 30 to 59 days
Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent, (d)
as
to which foreclosure proceedings have been commenced and (e) in bankruptcy,
in
each case as of the close of business on the last day of the preceding calendar
month;
(xiv) the
rolling six-month delinquency rate for that Distribution Date;
(xv) the
total
number and cumulative principal balance of all REO Properties in each Loan
Group
as of the Close of Business of the last day of the preceding Due
Period;
(xvi) the
aggregate amount of Principal Prepayments and Prepayment Penalty Amounts with
respect to each Loan Group made during the related Prepayment
Period;
(xvii) the
aggregate amount of Realized Losses for each Loan Group and Recoveries incurred
during the related Due Period and the cumulative amount of Realized Losses
and
Recoveries as of such Distribution Date;
(xviii) the
cumulative amount of Realized Losses for each Loan Group;
(xix) the
Realized Losses and Recoveries, if any, allocated to each Class of Certificates
on the related Distribution Date;
(xx) the
Class
Certificate Principal Balance of each Class of Certificates and the Apportioned
Principal Balances of the Subordinate Certificates after giving effect to any
distributions made thereon, on such Distribution Date;
(xxi) the
Interest Distributable Amount in respect of each Class of Certificates, for
such
Distribution Date and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xxii) the
aggregate amount of any Net Interest Shortfalls and the Unpaid Interest
Shortfall Amount for such Distribution Date;
(xxiii) the
Available Funds with respect to each Loan Group;
(xxiv) the
Pass-Through Rate for each Class of Certificates for such Distribution Date
(xxv) the
aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller
during the related Due Period;
(xxvi) the
amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid
to
an Undercollateralized Group or amounts paid pursuant to Section
5.01(f)(i);
(xxvii) the
total
number of Mortgage Loans in the aggregate and the aggregate Stated Principal
Balance for the Group 1 Mortgage Loans (also separately stating such information
for the Adjustable Rate Mortgage Loans, the Three-Year Hybrid Mortgage Loans
and
the Five-Year Hybrid Mortgage Loans), the Group 2 Mortgage Loans, the Group
3
Mortgage Loans and Group 4 Mortgage Loans, in each case at the close of business
at the end of the related Due Period; and
102
(xxviii) with
respect to the Mortgage Loans, but only if such Mortgage Loans were subject
to a
modification of terms made during the related Due Period as part of a loss
mitigation strategy, the following items:
(a) the
percentage (by outstanding Principal Balance) and the number of Mortgage Loans
that were modified in the related Due Period;
(b) the
cumulative percentage (by Cut-Off Date Principal Balance) of modified mortgage
loans;
(c) the
amount of principal and interest forgiven with respect to modified Mortgage
Loans for the related Due Period;
(d) the
cumulative amount of principal and interest forgiven with respect to modified
Mortgage Loans from the Closing Date;
(e) the
percentage (by outstanding Principal Balance) of modified Mortgage Loans that
are included in the delinquency trigger calculation for purposes of the Step
Down Conditions and the Two Times Test;
(f) the
delinquency status of the modified Mortgage Loans both pre- and post-
modification;
(g) the
number of times the Mortgage Loan has been subject to modification;
(h) the
effective date of the modification;
(i) the
number of modifications made to Mortgage Loans in the last twelve
months;
(j) the
percentage (by outstanding Principal Balance) of modified Mortgage Loans that
are current or delinquent in payment and the delinquency status of the modified
Mortgage Loans from the Closing Date; and
(k) the
Loan
Rate of the modified Mortgage Loans pre- and post- modification.
The
Securities Administrator will make the Distribution Date Statement (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties to
this
Agreement via the Securities Administrator’s internet website. The Securities
Administrator’s internet website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 1-866-846-4526. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed
to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator shall
provide timely and adequate notification to all parties regarding any such
change.
103
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-Off
Date.
(l) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon written request, furnish to each Person who at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i), (ii) and (iv) above, aggregated for such calendar
year
or applicable portion thereof during which such Person was a Certificateholder
and such other customary information which a Certificateholder reasonably
requests to prepare its tax returns. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be prepared and furnished by the
Securities Administrator to Certificateholders pursuant to any requirements
of
the Code as are in force from time to time.
(m) On
each
Distribution Date, the Securities Administrator shall supply an electronic
tape
to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic
tape
to Loan Performance and Intex Solutions in a format acceptable to Loan
Performance and Intex Solutions on a monthly basis.
SECTION
5.05. Remittance
Reports; Advances.
(a) No
later
than the second Business Day following each Determination Date, the Master
Servicer shall deliver to the Securities Administrator by telecopy or electronic
mail (or by such other means as the Master Servicer and the Securities
Administrator may agree from time to time) the Remittance Report with respect
to
the related Distribution Date. Not later than the Close of Business New York
time three Business Days prior to the related Distribution Date, the Master
Servicer shall deliver or cause to be delivered to the Securities Administrator
in addition to the information provided on the Remittance Report, such other
loan-level information reasonably available to it with respect to the Mortgage
Loans as the Securities Administrator may reasonably require to perform the
calculations necessary to make the distributions contemplated by Section 5.01.
(b) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date and is
delinquent, other than as a result of application of the Relief Act, and for
which the related Servicer was required to make an advance pursuant to the
related Servicing Agreement exceeds the amount deposited in the Distribution
Account which will be used for an advance with respect to such Mortgage Loan,
the Master Servicer, as successor servicer, will deposit in the Distribution
Account not later than the Business Day immediately preceding the related
Distribution Date an amount equal to such deficiency, net of the Servicing
Fee
and the Master Servicing Fee, for such Mortgage Loan except to the extent the
Master Servicer determines any such Advance to be Nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage
Loan
for which such Advance was made. Subject to the foregoing, the Master Servicer,
as successor servicer, shall continue to make such Advances through the date
that the related Servicer is required to do so under its Servicing Agreement.
If
applicable, on the Business Day immediately preceding the related Distribution
Date, the Master Servicer, as successor servicer, shall present an Officer’s
Certificate to the Securities Administrator and the Trustee (i) stating that
the
Master Servicer elects not to make a Advance in a stated amount and (ii)
detailing the reason it deems the advance to be Nonrecoverable.
104
Notwithstanding
anything in this Section 5.05 to the contrary, the Master Servicer’s obligation
or the Trustee’s obligation, as successor Master Servicer, to make Advances on
the Mortgage Loans in the aggregate shall be reduced by any Capitalization
Reimbursement Amounts during the related Due Period.
SECTION
5.06. Compensating
Interest Payments.
The
amount of the Master Servicing Fee payable to the Master Servicer in respect
of
any Distribution Date shall be reduced (but not below zero) by the amount of
any
Compensating Interest Payment for such Distribution Date, but only to the extent
that Interest Shortfalls relating to such Distribution Date are required to
be
paid but are not actually paid by the related Servicers on the applicable
Servicer Remittance Date. Such amount shall not be treated as an Advance and
shall not be reimbursable to the Master Servicer.
SECTION
5.07. [Reserved].
SECTION
5.08. [Reserved].
SECTION
5.09. [Reserved].
SECTION
5.10. Recoveries.
(a) The
Class
Certificate Principal Balance of any Class of Certificates to which a Realized
Loss has been allocated (including any such Class for which the related Class
Certificate Principal Balance has been reduced to zero) will be increased up
to
the amount of Recoveries for such Distribution Date as follows:
(i) first,
to
increase the Class Certificate Principal Balance of each such Class of Senior
Certificates of the related Loan Group, up to the amount of Realized Losses
previously allocated to reduce the Class Certificate Principal Balance for
each
such Class, and
(ii) second,
to
increase the Class Certificate Principal Balance of each such Class of
Subordinate Certificates, in each case in order of seniority, up to the amount
of Realized Losses previously allocated to reduce the Class Certificate
Principal Balance for each such Class.
105
(b) Any
increase to the Class Certificate Principal Balance of a Class of Certificates
shall increase the Certificate Principal Balance of each Certificate of the
related Class pro
rata
in
accordance with the applicable Percentage Interest.
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
The
Certificates shall be substantially in the form annexed hereto as Exhibit A
through E. Each of the Certificates shall, on original issue, be executed by
the
Securities Administrator, and authenticated and delivered by the Securities
Administrator upon the written order of the Depositor concurrently with the
sale
and assignment to the Trustee of the Trust Fund. Each Class of the Regular
Certificates shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of $25,000
and integral dollar multiples of $1 in excess thereof, in the case of the Class
1A-1, Class 1A-2, Class 2A-1, Class 2A-2, Class 3A-1, Class 3A-2, Class 4A-1,
Class 4A-2, Class B-1, Class B-2 and Class B-3 Certificates (provided,
that,
such Certificates must be purchased in minimum total investments of at least
$100,000), $100,000 minimum notional amounts and increments of $1,000 in excess
thereof, in the case of the Class 1-AX, Class 2-AX, Class 3-AX and Class 4-AX
Certificates and $100,000 and integral dollar multiples of $1 in excess thereof,
in the case of the Class B-4, Class B-5 and Class B-6 Certificates, except
that
one Certificate of each such Class of Certificates may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Class Certificate Principal Balance
or Class Certificate Notional Balance of such Class on the Closing Date. The
Class A-R Certificates is issuable only in a Percentage Interest of 100%.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer or the Securities
Administrator. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Trustee or Securities Administrator shall bind the
Trust, notwithstanding that such individuals or any of them have ceased to
be so
authorized prior to the authentication and delivery of such Certificates or
did
not hold such offices at the date of such Certificate. No Certificate shall
be
entitled to any benefit under this Agreement or be valid for any purpose, unless
such Certificate shall have been manually authenticated by the Trustee or
Securities Administrator substantially in the form provided for herein, and
such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Subject to Section 6.02(c), the Senior Certificates (other than the Residual
Certificate) and each Class of Subordinate Certificates shall be Book-Entry
Certificates. The Residual Certificates shall be issued as a Physical
Certificate in definitive, fully registered form with the applicable legends
set
forth in Exhibit C.
106
The
Private Certificates shall be offered and sold in reliance on the exemption
from
registration under Rule 144A of the Securities Act and, shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form with the applicable legends set forth in
Exhibit D (each, a “Restricted
Global Security”),
which
shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Securities Administrator, as custodian for DTC
and
registered in the name of a nominee of DTC, duly executed and authenticated
by
the Securities Administrator as hereinafter provided. The aggregate principal
amounts of the Restricted Global Securities may from time to time be increased
or decreased by adjustments made on the records of the Securities Administrator
and DTC or its nominee, as the case may be, as hereinafter
provided.
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Securities Administrator shall initially serve as Certificate Registrar
for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph (or, so long as the Securities Administrator serves as
Certificate Registrar, the office of the Certificate Registrar located at Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, or such other office
or agency that the Certificate Registrar shall designate), the Securities
Administrator on behalf of the Trust shall execute, authenticate and deliver,
in
the name of the designated transferee or transferees, one or more new
Certificates of the same aggregate Percentage Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute on behalf of the Trust and authenticate
and deliver the Certificates which the Certificateholder making the exchange
is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall (if so required by the Securities Administrator
or
the Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer satisfactory to the Securities Administrator and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly
authorized in writing.
(b) Except
as
provided in paragraph (c) or (d) below, the Book-Entry Certificates shall at
all
times remain registered in the name of the Depository or its nominee and at
all
times: (i) registration of such Certificates may not be transferred by the
Securities Administrator or the Certificate Registrar except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules established
by the Depository; (iv) the Depository may collect its usual and customary
fees,
charges and expenses from its Depository Participants; (v) the Trustee, the
Securities Administrator and the Certificate Registrar shall for all purposes
deal with the Depository as representative of the Certificate Owners of the
Certificates for purposes of exercising the rights of Holders under this
Agreement, and requests and directions for and votes of such representative
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; (vi) the Trustee, the Securities Administrator
and
the Certificate Registrar may rely and shall be fully protected in relying
upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Securities Administrator,
the Certificate Registrar and their respective agents, employees, officers
and
directors as the absolute owner of the Certificates for all purposes
whatsoever.
107
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee or the Securities
Administrator in writing that the Depository is no longer willing or able to
discharge properly its responsibilities as Depository and (y) the Trustee,
the
Securities Administrator or the Depositor is unable to locate a qualified
successor or (ii) after the occurrence and continuation of an Event of Default,
Holders of Book-Entry Certificates having not less than 51% of the aggregate
Certificate Principal Balance of the Certificates advise the Trustee, the
Securities Administrator and the Depository in writing through the Depository
Participants that the continuation of a book-entry system with respect to
Certificates through the Depository (or its successor) is no longer in the
best
interests of the Holders, then the Trustee or the Securities Administrator
shall
request that the Depository notify all Holders of the occurrence of any such
event and of the availability of definitive, fully registered Certificates
to
Holders requesting the same. Upon surrender to the Certificate Registrar of
the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Securities Administrator
shall, at the Seller’s expense, execute on behalf of the Trust and authenticate
definitive, fully registered certificates (the “Definitive
Certificates”).
None
of the Depositor, the Securities Administrator or the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Securities Administrator, the
Certificate Registrar, any Paying Agent and the Depositor shall recognize the
Holders of the Definitive Certificates as Certificateholders
hereunder.
108
(d) No
transfer, sale, pledge or other disposition of any Private Certificate shall
be
made unless such disposition is exempt from the registration requirements of
the
Securities Act, and any applicable state securities laws or is made in
accordance with the Securities Act and laws. Any Private Certificates sold
to an
“accredited investor” under Rule 501(a)(1), (2), (3) or (7) under the Securities
Act shall be issued only in the form of one or more Definitive Certificates
and
the records of the Securities Administrator and DTC or its nominee shall be
adjusted to reflect the transfer of such Definitive Certificates. In the event
of any transfer of any Private Certificate in the form of a Definitive
Certificate, the transferee shall certify (i) (A) such transfer is made to
a
Qualified Institutional Buyer in reliance upon Rule 144A (as evidenced by the
investment letter delivered to the Securities Administrator, in substantially
the form attached hereto as Exhibit J-2) under the Securities Act, or (B) such
transfer is made to an “accredited investor” under Rule 501(c)(1), (2), (3) or
(7) under the Securities Act (as evidenced by an investment letter delivered
to
the Securities Administrator, in substantially the form attached hereto as
Exhibit J-1, and, if so required by the Securities Administrator, a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator is delivered
to the Securities Administrator that such transfer may be made pursuant to
an
exemption, describing the applicable exemption and the basis therefor, from
the
Securities Act or is being made pursuant to the Securities Act, which Opinion
of
Counsel shall not be an expense of the Trustee, the Securities Administrator
or
the Depositor or (ii) the Securities Administrator shall require the transferor
to execute a transferor certificate and the transferee to execute an investment
letter acceptable to and in form and substance reasonably satisfactory to the
Depositor and the Securities Administrator certifying to the Depositor and
the
Securities Administrator the facts surrounding such transfer, which investment
letter shall not be an expense of the Trustee, the Securities Administrator
or
the Depositor. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Securities
Administrator, the Seller and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. Notwithstanding the foregoing, any transfer made to
Xxxxxxxxx or to another Affiliate of Xxxxxxxxx will not require any investment
letter or Opinion of Counsel specified above.
In
the
case of a Private Certificate that is a Book-Entry Certificate, for purposes
of
the preceding paragraph, the representations set forth in the investment letter
in clause (i) shall be deemed to have been made to the Securities Administrator
by the transferee’s acceptance of such Private Certificate that is also a
Book-Entry Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in such Certificate).
Except
for any transfer made to Xxxxxxxxx or to another Affiliate of Xxxxxxxxx, no
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Securities Administrator shall have
received either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Securities
Administrator (such requirement is satisfied only by the Securities
Administrator’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I hereto), to the effect that such
transferee is not an employee benefit plan subject to ERISA or a plan or
arrangement subject to Section 4975 of the Code, nor a person acting on behalf
of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer or (ii) such Certificate is subject to
an
ERISA-Qualifying Underwriting and if the purchaser is an insurance company,
a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE
95-60”)
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the
Securities Administrator, addressed to the Securities Administrator, to the
effect that the purchase and holding of such ERISA-Restricted Certificate that
is also a Physical Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will
not
subject the Trustee, the Master Servicer, any Servicer, the Securities
Administrator or the Depositor to any obligation or liability in addition to
those expressly undertaken in this Agreement, which Opinion of Counsel shall
not
be at the expense of the Trust or any of the above parties. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate that is also a Physical Certificate to an employee
benefit plan subject to ERISA or Section 4975 of the Code without the delivery
to the Securities Administrator of a representation or an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect.
109
In
the
case of an ERISA-Restricted Certificate that is a Book-Entry Certificate, for
purposes of clauses (i) or (ii) of the first sentence of the preceding
paragraph, such representations shall be deemed to have been made to the
Securities Administrator by the transferee’s acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
none of the Trustee, the Securities Administrator nor the Certificate Registrar
shall have any liability to any Person for any registration of transfer of
any
ERISA-Restricted Certificate that is in fact not permitted by this Section
6.02(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Securities
Administrator or the Certificate Registrar in accordance with the foregoing
requirements. In addition, none of the Trustee, the Securities Administrator
nor
the Certificate Registrar shall be required to monitor, determine or inquire
as
to compliance with the transfer restrictions with respect to any such
Certificate in the form of a Book-Entry Certificate, and neither the Securities
Administrator nor the Certificate Registrar shall have any liability for
transfers of Book-Entry Certificates or any interests therein made in violation
of the restrictions on transfer described in the Prospectus Supplement and
this
Agreement.
No
transfer of a Certificate (other than an ERISA-Restricted Certificate) shall
be
made unless the Securities Administrator shall have received a representation
letter from the transferee of such Certificate (other than an ERISA-Restricted
Certificate), substantially in the form set forth in Exhibit I, to the effect
that either (i) such transferee is neither a Plan nor a Person acting on behalf
of any such Plan or using the assets of any such Plan to effect such transfer
or
(ii) if such Certificate (other than an ERISA-Restricted Certificate) has been
the subject of an ERISA-Qualifying Underwriting, the acquisition and holding
of
the Certificate (other than an ERISA-Restricted Certificate) are eligible for
exemptive relief under Prohibited Transaction Class Exemption (“PTCE”) 00-00,
XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23, the statutory exemption for
non-fiduciary service providers under Section 408(b)(17) of ERISA and Section
4975(d)(20) of the Code or some other applicable administrative or statutory
exemption. Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate (other than an ERISA-Restricted Certificate) on behalf
of a Plan without the delivery to the Trustee of a representation letter as
described above shall be void and of no effect. If the Certificate (other than
an ERISA-Restricted Certificate) is a Book-Entry Certificate, the transferee
will be deemed to have made a representation as provided in clause (i) or (ii)
of this paragraph, as applicable.
110
If
any
Certificate (other than an ERISA-Restricted Certificate), or any interest
therein, is acquired or held in violation of the provisions of the preceding
paragraph, the next preceding permitted beneficial owner will be treated as
the
beneficial owner of that Certificate (other than an ERISA-Restricted
Certificate), retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of a
Certificate (other than an ERISA-Restricted Certificate), or interest therein,
was effected in violation of the provisions of the preceding paragraph shall
indemnify to the extent permitted by law and hold harmless the Depositor, the
Trustee and the Securities Administrator from and against any and all
liabilities, claims, costs or expenses incurred by such parties as a result
of
such acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee and the Securities Administrator shall be under no liability to
any
Person for any registration of transfer of any Certificate (other than an
ERISA-Restricted Certificate) that is in fact not permitted by this Section
6.02(d) or for making any payments due on such Certificate (other than an
ERISA-Restricted Certificate) to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement so long
as
the transfer was registered by the Securities Administrator in accordance with
the foregoing requirements.
(e) Each
Person who has or who acquires any Ownership Interest in the Class A-R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact
to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall be a Permitted Transferee who acquires such Ownership Interest in a Class
A-R Certificate for its own account and not in the capacity as trustee, nominee
or agent for another Person and shall promptly notify the Securities
Administrator of any change or impending change in its status as such a
Permitted Transferee.
(ii) No
Ownership Interest in the Residual Certificate may be registered on the Closing
Date and no Ownership Interest in a Residual Certificate may thereafter be
transferred, and the Securities Administrator shall not register the Transfer
of
a Residual Certificate unless, in addition to the certificates required to
be
delivered under subsection (d) above, the Securities Administrator shall have
been furnished with an affidavit (“Transfer
Affidavit”)
of the
initial owner of such Residual Certificate, or proposed transferee of a Residual
Certificate in the form attached hereto as Exhibit L.
111
(iii) In
connection with any proposed transfer of any Ownership Interest in the Residual
Certificate, the Securities Administrator shall as a condition to registration
of the transfer, require delivery to it of a Transferor Certificate in the
form
of Exhibit K hereto from the proposed transferor to the effect that the
transferor (a) has no knowledge the proposed Transferee is not a Permitted
Transferee acquiring an Ownership Interest in such Residual Certificate, as
applicable, for its own account and not in a capacity as trustee, nominee,
or
agent for another Person, and (b) has not undertaken the proposed transfer
in
whole or in part to impede the assessment or collection of tax.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of such Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of Transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. None of the Trustee, the Securities Administrator or the
Certificate Registrar shall have any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by this Section or for making any distributions due on a Residual Certificate
to
the Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as, with respect to the Securities
Administrator, it has received the documents specified in clause (iii). The
Securities Administrator shall be entitled to recover from any Holder of such
Residual Certificate that was in fact not a Permitted Transferee at the time
such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities Administrator
shall be distributed and delivered by the Securities Administrator to the last
Holder of such Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Securities Administrator shall have the right but not the obligation, without
notice to the Holder of such Residual Certificate or any other Person having
an
Ownership Interest therein, to notify the Depositor to arrange for the sale
of
such Residual Certificate. The proceeds of such sale, net of commissions (which
may include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the
Securities Administrator to the previous Holder of such Residual Certificate
that is a Permitted Transferee, except that in the event that the Securities
Administrator determines that the Holder of such Residual Certificate may be
liable for any amount due under this Section or any other provisions of this
Agreement, the Securities Administrator may withhold a corresponding amount
from
such remittance as security for such claim. The terms and conditions of any
sale
under this clause (v) shall be determined in the sole discretion of the
Securities Administrator and it shall not be liable to any Person having an
Ownership Interest in such Residual Certificate as a result of its exercise
of
such discretion.
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(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Securities Administrator upon receipt of reasonable compensation will provide
to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trustee,
the Securities Administrator and the Servicer, in form and substance
satisfactory to the Trustee and the Securities Administrator, (i) written
notification from each Rating Agency that the removal of the restrictions on
Transfer set forth in this Section will not cause such Rating Agency to
downgrade its ratings of the Certificates and (ii) an Opinion of Counsel to
the
effect that such removal will not cause either REMIC created hereunder to fail
to qualify as a REMIC.
(f) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Securities Administrator, the Depositor and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee, the Securities Administrator
or
the Certificate Registrar that such Certificate has been acquired by a bona
fide
purchaser, the Securities Administrator shall execute on behalf of the Trust,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee, the Securities Administrator or the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, the Securities
Administrator and the Certificate Registrar) in connection therewith. Any
duplicate Certificate issued pursuant to this Section, shall constitute complete
and indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
SECTION
6.04. Persons
Deemed Owners.
The
Depositor, the Trustee, the Securities Administrator, the Certificate Registrar,
any Paying Agent and any agent of the Depositor, the Certificate Registrar,
any
Paying Agent, the Securities Administrator or the Trustee may treat the Person,
including a Depository, in whose name any Certificate is registered as the
owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.01 hereof and for all other purposes whatsoever, and none of the
Trust, the Trustee, the Securities Administrator, the Certificate Registrar,
the
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
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SECTION
6.05. Appointment
of Paying Agent.
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 5.01 hereof. The duties of the Paying
Agent may include the obligation to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly incorporated and validly existing
under the laws of the United States of America or any state thereof, authorized
under such laws to exercise corporate trust powers and subject to supervision
or
examination by federal or state authorities. The Paying Agent shall initially
be
the Securities Administrator. The Securities Administrator may appoint a
successor to act as Paying Agent, which appointment shall be reasonably
satisfactory to the Depositor.
(b) The
Securities Administrator or the Trustee, as applicable, shall cause the Paying
Agent (if other than the Trustee or the Securities Administrator) to execute
and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee that such Paying Agent shall hold all sums, if any, held by it
for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements
of
the Code regarding the withholding of payments in respect of federal income
taxes due from Certificate Owners and otherwise comply with the provisions
of
this Agreement applicable to it.
SECTION
6.06. Optional
Purchase of Certificates.
(a) All
but
not less than all of the Certificates are subject to purchase by TMI, at its
option, on any Distribution Date on or after the Optional Securities Purchase
Date from the then Certificateholders thereof; provided,
however,
that
TMI may appoint a designee to purchase the Residual Certificate. The purchase
price for each Certificate (other than an Interest-Only Certificate or a
Residual Certificate) shall be equal to the sum of (i) the Certificate
Principal Balance of such Certificate and (ii) any accrued but unpaid
interest thereon at the applicable Pass-Through Rate with respect thereto for
such Distribution Date. The purchase price for the Interest-Only Certificates
shall be an amount equal to the sum of (x) any Interest Distributable Amounts
due (after taking into account payments made on such date from Interest
Distributable Amounts) on each of the Interest-Only Certificates, and (y) the
present value, as of the date of such termination, of the remaining payments
scheduled to be made on the Interest-Only Certificates (such present value
to be
based on a discount rate that will approximate the expected yield to maturity
of
the Interest-Only Certificates). For purposes of clause (y) above, TMI will
provide, at its expense, information from a pricing service or an independent
valuation necessary to compute the present value of the Interest-Only
Certificates. The Securities Administrator shall be entitled to rely on such
information for the purchase price. The purchase price for the Class A-R
Certificate shall be $1.00. In order to exercise the Optional Securities
Purchase Right, TMI must, no later than the eighth Business Day prior to the
applicable Distribution Date, deliver to the Securities Administrator (with
copies to the Rating Agencies, the Master Servicer and the Trustee) written
notice, in the form of Exhibit O hereto, of its intent to purchase the
Certificates and of the Distribution Date on which it intends to do so and
the
Securities Administrator will verify in writing to TMI the cash amount required
of TMI to effect such purchase no later than the third Business Day prior to
the
Distribution Date on which such purchase is scheduled to occur. The Securities
Administrator shall furnish notice of the exercise of the Optional Securities
Purchase Right to the applicable Certificateholders in compliance with Section
6.06(c). On the Distribution Date on which the Optional Securities Purchase
Right will be exercised, TMI shall deposit the appropriate amount in cash with
the Securities Administrator. Such amount shall be deposited by the Securities
Administrator into a separate sub-account of the Distribution Account (the
“Purchase
Account”).
Such
amounts shall be paid by the Securities Administrator to Holders of the
applicable Certificates as provided in Section 6.06(d).
114
(b) In
the
case of an exercise of the Optional Securities Purchase Right, TMI shall be
solely responsible for the costs and expenses of the Trustee, the Securities
Administrator and the Master Servicer.
(c) Notice
of
exercise of the Optional Securities Purchase Right under Section 6.06(a) shall
be given by the Securities Administrator by facsimile or by first-class mail,
postage prepaid, transmitted or mailed not less than five Business Days prior
to
the applicable Distribution Date, to the Holder of the Class A-R Certificate
as
of the close of business on the Record Date preceding such Distribution Date
and
to each Holder of a Certificate (other than a Residual Certificate) as of a
date
not more than one Business Day preceding
the mailing of such notice, at such Holder's address appearing in the
Certificate Register.
All
such
notices shall state:
(i) the
Distribution Date upon which the Certificateholders will receive payment in
full
on the applicable Certificates;
(ii) the
amount the applicable Certificateholders will be paid, separately stating
amounts in respect of principal and interest;
(iii) that
the
Record Date otherwise applicable to such Distribution Date is not applicable
and
that payments shall be made only upon presentation and surrender of the
respective Certificates and the place where such Certificates are to be
surrendered for payment; and
(iv) that
interest on the respective Certificates shall cease to accrue for the benefit
of
the then Certificateholders on such Distribution Date and no interest shall
accrue on the price paid for such Certificates.
The
foregoing notice shall be given by the Securities Administrator in the name
and
at the expense of TMI. Failure to give notice of such purchase, or any defect
therein, to any Holder of any Certificate shall not impair or affect the
validity of the purchase of any other Certificate.
(d) The
Certificates shall, following notice as required by Section 6.06(c), be
purchased on the applicable Distribution Date by TMI at the price specified
in
Section 6.06(a) from funds in the Purchase Account, and (unless TMI shall
default in the payment of such amount) no interest shall accrue on such amount
for any period after the date to which accrued interest is calculated for
purposes of calculating such amount.
115
(e) Subsequent
to the purchase of the Certificates following exercise of the Optional
Securities Purchase Right, TMI shall be deemed the sole Holder of the Offered
Certificates (other than the Residual Certificates) and it shall either be
the
sole Holder of the Class A-R Certificate or may designate a Person which meets
the requirements of this Agreement to become the Holder thereof. TMI may
subsequently transfer some or all of the Certificates acquired by it in
accordance with the provisions hereof. All Certificates issued to the
Certificateholders prior to exercise of the Optional Securities Purchase Right
shall be deemed cancelled (other than those Certificates held by
TMI).
ARTICLE
VII
DEFAULT
SECTION
7.01. Event
of Default.
(a) If
any
one of the following events (each, an “Event
of Default”)
shall
occur and be continuing:
(i) the
failure by the Master Servicer to (A) in its capacity as successor servicer
make
any Advance on the Business Day immediately preceding the related Distribution
Date or (B) to deposit in the Distribution Account any deposit required to
be
made under the terms of this Agreement, and in either case such failure
continues unremedied for a period of three Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer (or, if applicable, such shorter time
period as is provided in the penultimate sentence of Section 7.01(c));
or
(ii) the
failure by the Master Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master Servicer
as set forth in this Agreement, which failure continues unremedied for a period
of 60 days, in each case after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or to the Master Servicer and the Trustee by Holders
of
Certificates evidencing at least 25% of the Voting Rights or (B) on which a
Servicing Officer of the Master Servicer has actual knowledge of such failure
(or, in the case of a breach of its obligation beyond any applicable cure period
to provide an assessment of compliance, an attestation report or a
Xxxxxxxx-Xxxxx Certification pursuant to Sections 3.16 and 3.18, respectively);
or
(iii) the
entry
against the Master Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding up or liquidation of
its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 days; or
116
(iv) the
Master Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator or receiver or liquidator or similar person in
any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Master Servicer or of or relating
to
all or substantially all of its property; or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, liquidator or similar person in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged, unbonded or unstayed for a period of 60
days; or the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
(b) then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied within the applicable grace period, the Trustee shall, at the written
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51%, or at its option may, with the consent of Xxxxxxxxx (not
to
be unreasonably withheld), by notice then given in writing to the Master
Servicer, terminate all of the rights and obligations of the Master Servicer
as
servicer under this Agreement. Any such notice to the Master Servicer shall
also
be given to each Rating Agency, the Depositor and the Seller. On or after the
receipt by the Master Servicer (and by the Trustee if such notice is given
by
the Holders) of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates or
the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee and
the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Master Servicer, as attorney-in-fact or otherwise, any and all documents
and
other instruments, and to do or accomplish all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of each Mortgage Loan and related
documents or otherwise. The Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the responsibilities and rights of the Master
Servicer hereunder, including, without limitation, the delivery to the Trustee
of all documents and records requested by it to enable it to assume the Master
Servicer's functions under this Agreement within ten Business Days subsequent
to
such notice and the transfer within one Business Day subsequent to such notice
to the Trustee for the administration by it of all cash amounts that shall
at
the time be held by the Master Servicer and to be deposited by it in the
Distribution Account, any REO Account or any Servicing Account or that have
been
deposited by the Master Servicer in such accounts or thereafter received by
the
Master Servicer with respect to the Mortgage Loans or any REO Property received
by the Master Servicer. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Master Servicer's duties
and
the Mortgage Files to the successor Master Servicer and amending this Agreement
to reflect such succession as Master Servicer pursuant to this Section shall
be
paid by the predecessor Master Servicer (or if the predecessor Master Servicer
is the Trustee, the initial Master Servicer) upon presentation of reasonable
documentation of such costs and expenses. The termination of the rights and
obligations of the Master Servicer shall not affect any liability it may have
incurred prior to such termination. To the extent that such costs and expenses
of the Trustee are not fully and timely reimbursed by the predecessor Master
Servicer, the Trustee shall be entitled to reimbursement of such costs and
expenses from the Distribution Account.
117
(c) The
Securities Administrator shall not later than the close of business on the
Business Day immediately preceding the related Distribution Date notify the
Trustee in writing of the Master Servicer’s failure, as successor servicer, to
make any Advance required to be made under this Agreement on such date and
the
amount of such Advance. By no later than 10:00 A.M. (Chicago time) on the
relevant Distribution Date, the Securities Administrator shall notify the
Trustee of the continuance of such failure or that the Master Servicer, as
successor servicer, has made the Advance, as the case may be. Notwithstanding
the terms of the Event of Default described in clause (i)(A) of Section 7.01(a),
the Trustee, upon receipt of written notice on the Distribution Date from the
Securities Administrator of the continuance of the failure of the Master
Servicer, as successor servicer, to make an Advance, shall, by notice in writing
to the Master Servicer, which may be delivered by telecopy, immediately suspend
all of the rights and obligations of the Master Servicer thereafter arising
under this Agreement, but without prejudice to any rights it may have as a
Certificateholder or to reimbursement of outstanding Advances or other amounts
for which the Master Servicer was entitled to reimbursement as of the date
of
suspension, and the Trustee, subject to the cure provided for in this paragraph,
if available, shall act as provided in Section 7.02 to carry out the duties
of
the Master Servicer, including the obligation to make any Advance the nonpayment
of which is described in clause (i)(A) of Section 7.01(a). Any such action
taken
by the Trustee must be prior to the distribution on the relevant Distribution
Date, and shall have all of the rights incidental thereto. If the Master
Servicer shall within two Business Days following such suspension remit to
the
Trustee the amount of any Advance the nonpayment of which by the Master
Servicer, as successor servicer, is described in clause (i)(A) of Section
7.01(a), together with all other amounts necessary to reimburse the Trustee
for
actual, necessary and reasonable costs incurred by the Trustee because of action
taken pursuant to this subsection (including interest on any Advance or other
amounts paid by the Trustee (from and including the respective dates thereof)
at
a per annum rate equal to the prime rate for U.S. money center commercial banks
as published in the Wall
Street Journal),
then
the Trustee, subject to the last two sentences of this paragraph, shall permit
the Master Servicer to resume its rights and obligations as Master Servicer
hereunder. If the Master Servicer shall fail to remit such amounts to the
Trustee within such two Business Days after the Distribution Date, then an
Event
of Default shall occur and such notice of suspension shall be deemed to be
a
notice of termination without any further action on the part of the Trustee.
The
Master Servicer agrees that if it, as successor servicer, fails to make a
required Advance by 10:00 A.M. (Chicago time) on the related Distribution Date
on more than two occasions in any 12 month period, the Trustee shall be under
no
obligation to permit the Master Servicer to resume its rights and obligations
as
Master Servicer hereunder, and notwithstanding the cure period provided in
Section 7.01(a)(i)(A), an Event of Default shall be deemed to have occurred
on
the relevant Distribution Date.
SECTION
7.02. Trustee
to Act.
(a) From
and
after the date the Master Servicer (and the Trustee, if notice is sent by the
Holders) receives a notice of termination pursuant to Section 7.01, the Trustee
shall be the successor in all respects to the Master Servicer in its capacity
as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof arising on and after its succession. As compensation therefor, the
Trustee shall be entitled to such compensation as the Master Servicer would
have
been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Trustee is unwilling to act as successor
Master Servicer or (ii) if the Trustee is legally unable so to act, subject
to
the rights of Xxxxxxxxx under Section 3.33 hereof, the Trustee shall appoint
or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution, bank or other mortgage loan or home equity loan
servicer having a net worth of not less than $15,000,000 as the successor to
the
Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the appointment of any such successor Master Servicer shall
not
result in the qualification, reduction or withdrawal of the ratings assigned
to
the Certificates by each Rating Agency as evidenced by a letter to such effect
from each Rating Agency. Pending appointment of a successor to the Master
Servicer hereunder, unless the Trustee is prohibited by law from so acting,
the
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Master Servicer would otherwise have received pursuant
to
Section 3.18. The appointment of a successor Master Servicer shall not affect
any liability of the predecessor Master Servicer which may have arisen under
this Agreement prior to its termination as Master Servicer to pay any deductible
under an insurance policy pursuant to Section 3.14 or to indemnify the Trustee
pursuant to Section 8.05), nor shall any successor Master Servicer be liable
for
any acts or omissions of the predecessor Master Servicer or for any breach
by
such Master Servicer of any of its representations or warranties contained
herein or in any related document or agreement. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession. In the event that the Trustee shall not succeed
to the duties of the Master Servicer pursuant to Section 7.02 hereof, Xxxxxxxxx
shall have the right, but not the obligation, to be appointed successor master
servicer hereunder.
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(b) Any
successor, including the Trustee, to the Master Servicer as Master Servicer
shall during the term of its service as Master Servicer continue to service
and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Master Servicer hereunder
and
a Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.04.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Master Servicer
to act as successor Master Servicer under this Agreement and the transactions
set forth or provided for herein.
SECTION
7.03. Waiver
of Event of Default.
The
Majority Certificateholders may, on behalf of all Certificateholders, by notice
in writing to the Trustee, direct the Trustee to waive any events permitting
removal of any Master Servicer under this Agreement, provided,
however,
that the
Majority Certificateholders may not waive an event that results in a failure
to
make any required distribution on a Certificate without the consent of the
Holder of such Certificate. Upon any waiver of an Event of Default, such event
shall cease to exist and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to each Rating Agency.
119
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to any Master Servicer pursuant to
this Article VII or Section 3.34, the Certificate Registrar or the Trustee,
if
the Master Servicer is also the Certificate Registrar and Securities
Administrator, shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute an Event of Default of
which
a Responsible Officer of the Trustee becomes aware of the occurrence of such
an
event, the Trustee shall transmit by mail to all Certificateholders notice
of
such occurrence unless such Event of Default shall have been waived or
cured.
ARTICLE
VIII
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
8.01. Duties
of Trustee and Securities Administrator.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, and the Securities
Administrator each undertake to perform such duties and only such duties as
are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured or waived) of which a Responsible Officer has actual
knowledge, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs, unless the Trustee is acting as successor Master Servicer,
in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder with respect to the exercise of the rights and powers of the Master
Servicer hereunder.
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator, which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator will be responsible for
the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found not
to
conform to the requirements of this Agreement in a material manner the Trustee
and the Securities Administrator shall take such action as it deems appropriate
to have the instrument corrected.
120
On
each
Distribution Date, the Securities Administrator shall make monthly distributions
to the Certificateholders from funds in the Distribution Account, as provided
in
Section 10.01 hereof based on the report of the Securities
Administrator.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
and the Securities Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of such of its duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Securities Administrator and, in the absence of bad faith on the part
of
the Trustee or the Securities Administrator, respectively, the Trustee or the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Securities Administrator shall be liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be proved
that the Trustee or the Securities Administrator, respectively, was negligent
in
ascertaining or investigating the facts related thereto;
(iii) neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the consent or at the direction of Holders of Certificates
as
provided herein relating to the time, method and place of conducting any remedy
pursuant to this Agreement, or exercising or omitting to exercise any trust
or
power conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any Event of Default or any
other
event or matter that may require it to take action or omit to take action
hereunder unless a Responsible Officer of the Trustee at the Corporate Trust
Office obtains actual knowledge of such failure or the Trustee receives written
notice of such Event of Default.
Neither
the Trustee nor the Securities Administrator shall be required to expend or
risk
its own funds or otherwise incur financial or other liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or indemnity satisfactory to it against such risk or liability is not
assured to it, and none of the provisions contained in this Agreement shall
in
any event require the Trustee or the Securities Administrator to perform, or
be
responsible for the manner of performance of, any of the obligations of the
Master Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Master Servicer in accordance with the terms of this
Agreement.
121
SECTION
8.02. Certain
Matters Affecting the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee and the Securities Administrator may request and conclusively rely
upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it
to
be genuine and to have been signed or presented by the proper party or parties,
and the manner of obtaining consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee and the Securities Administrator may
prescribe;
(ii) the
Trustee and the Securities Administrator may consult with counsel and any advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Securities Administrator, respectively, reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its
negligence or willful misconduct in the performance of any such
act;
(iv) neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior
to
the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or documents, unless requested in writing
to do so by the Majority Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition
to
such proceeding. If the Master Servicer fails to reimburse the Trustee in
respect of the reasonable expense of every such examination relating to the
Master Servicer, the Trustee shall be reimbursed by the Trust Fund;
122
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Securities
Administrator or the Master Servicer until such time as the Trustee may be
required to act as the Master Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as a successor Master
Servicer;
(vii) the
Trustee and the Securities Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, attorneys or a custodian, and shall not be responsible for
any
willful misconduct or negligence on the part of any agent, nominee, attorney
or
custodian appointed by the Trustee or the Securities Administrator in good
faith; and
(viii) the
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
negligence or willful misconduct in the performance of such act.
SECTION
8.03. Trustee
and the Securities Administrator Not Liable for Certificates, Mortgage Loans
or
Additional Collateral.
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee or Securities Administrator on the Certificates) shall be taken
as the statements of the Depositor or the Seller, and the neither Trustee nor
the Securities Administrator assumes responsibility for the correctness of
the
same. Neither the Trustee nor the Securities Administrator makes representations
or warranties as to the validity or sufficiency of this Agreement or of the
Certificates (other than the signature and authentication of the Securities
Administrator on the Certificates) or of any Mortgage Loan or related document
or of MERS or the MERS System. The Trustee shall not be accountable for the
use
or application by the Master Servicer, or for the use or application of any
funds paid to the Master Servicer in respect of related Mortgage Loans or
deposited in or withdrawn from the Distribution Account by the Master Servicer
or the Securities Administrator. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or
with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof);
the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the
duties of the Master Servicer pursuant to Section 7.02 hereof); the compliance
by the Depositor or the Seller with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee’s receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies
by
or at the direction of the Master Servicer or in the case of the Trustee the
Securities Administrator or any loss resulting therefrom, it being understood
that the Trustee shall remain responsible for any Trust property that it may
hold in its individual capacity and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of the Master Servicer (other than as to the Securities
Administrator, if it is also the Master Servicer, and as to the Trustee, if
the
Trustee shall assume the duties of the Master Servicer pursuant to Section
7.02
hereof, and then only for the acts or omissions of the Trustee as the successor
Master Servicer), or any acts or omissions of any Servicer or any Mortgagor;
any
action of the Master Servicer (other than as to the Securities Administrator,
if
it is also the Master Servicer, and as to the Trustee, if the Trustee shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof),
or in
the case of the Trustee the Securities Administrator or any Servicer taken
in
the name of the Trustee; the failure of the Master Servicer or any Servicer
to
act or perform any duties required of it as agent or on behalf of the Trustee
or
the Trust hereunder; or any action by the Trustee taken at the instruction
of
the Master Servicer (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 7.02 hereof, and then only for the actions
of the Trustee as the successor Master Servicer); provided,
however,
that the
foregoing shall not relieve the Trustee of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee’s duty to
review the Mortgage Files, if so required pursuant to Section 2.01 of this
Agreement.
123
SECTION
8.04. Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
The
Trustee, the Custodian, the Master Servicer and the Securities Administrator
in
their respective individual capacities, or in any capacity other than as
Trustee, Custodian, Master Servicer or Securities Administrator hereunder,
may
become the owner or pledgee of any Certificates with the same rights they would
have if they were not Trustee, Custodian, Master Servicer or Securities
Administrator, as applicable, and may otherwise deal with the parties
hereto.
SECTION
8.05. Trustee’s
and Securities Administrator’s Fees and Expenses.
The
Trustee shall be compensated by the Master Servicer for its services hereunder
on behalf of the Trust in accordance with the fee letter between the Master
Servicer and the Trustee. The Securities Administrator shall be compensated
by
the Master Servicer for its services hereunder from a portion of the Master
Servicing Fee. In addition, the Trustee (as Trustee and in its individual
corporate capacity) and the Securities Administrator will be entitled to recover
from the Distribution Account pursuant to Section 4.05(a) all reasonable
out-of-pocket expenses, disbursements and advances and the expenses of the
Trustee (including for such purpose, any fees and expenses relating to its
capacity as Custodian hereunder to the extent not paid by Xxxxxxxxx) and the
Securities Administrator, respectively, including without limitation, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the performance of its duties or the administration of the trusts hereunder
(including the reasonable compensation, expenses and disbursements of its
counsel) except any such expense, disbursement or advance as may arise from
its
negligence or intentional misconduct or which is specifically designated herein
as the responsibility of the Depositor, the Seller, the Master Servicer, the
Certificateholders or the Trust hereunder or thereunder. If funds in the
Distribution Account are insufficient therefor, the Trustee, the Custodian
and
the Securities Administrator shall recover such expenses from future collections
on the Mortgage Loans or as otherwise agreed by the Certificateholders. Such
compensation and reimbursement obligation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust.
124
SECTION
8.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and Securities Administrator hereunder shall at all times be an entity
duly organized and validly existing under the laws of the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, each having a combined capital and surplus
of at
least $50,000,000 and (except with respect to the initial Trustee) a minimum
long-term debt rating in the third highest rating category by each Rating Agency
and in each Rating Agency’s two highest short-term rating categories, and
subject to supervision or examination by federal or state authority. If such
entity publishes reports of condition at least annually, pursuant to law or
to
the requirements of the aforesaid supervising or examining authority, then
for
the purposes of this Section 8.06, the combined capital and surplus
of such
entity shall be deemed to be its combined capital and surplus
as set
forth in its most recent report of condition so published. The principal office
of the Trustee (other than the initial Trustee) shall be in a state with respect
to which an Opinion of Counsel has been delivered to such Trustee at the time
such Trustee is appointed Trustee to the effect that the Trust will not be
a
taxable entity under the laws of such state. In case at any time the Trustee
or
the Securities Administrator shall cease to be eligible in accordance with
the
provisions of this Section 8.06, the Trustee or the Securities Administrator,
as
applicable shall resign immediately in the manner and with the effect specified
in Section 8.07 hereof.
SECTION
8.07. Resignation
or Removal of Trustee and Securities Administrator.
The
Trustee and Securities Administrator may at any time resign and be discharged
from the trusts hereby created by giving written notice thereof to the
Depositor, the Seller, the Master Servicer and each Rating Agency. Upon
receiving such notice of resignation of the Trustee, the Seller shall promptly
appoint a successor Trustee that meets the requirements in Section 8.06 or,
in
the case of notice of resignation of the Securities Administrator, the Trustee
shall promptly appoint a successor Securities Administrator that meets the
requirements in Section 8.06, in each case, by written instrument, in duplicate,
one copy of which instrument shall be delivered to each of the resigning Trustee
or Securities Administrator, as applicable, and one copy to the successor
Trustee or successor Securities Administrator, as applicable. If no successor
Trustee or successor Securities Administrator, as applicable, shall have been
so
appointed and having accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee or Securities Administrator
may petition any court of competent jurisdiction for the appointment of a
successor Trustee or Securities Administrator, as applicable.
125
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 8.06 hereof or if at any time the
Trustee or the Securities Administrator shall be legally unable to act, or
shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation, or if the Trustee (in
its capacity as Custodian) or the Securities Administrator fails to provide
an
assessment of compliance or an attestation report required under Section 3.16
within 15 calendar days of March 1 of each calendar year in which Exchange
Act
reports are required then the Seller may remove the Trustee or the Trustee
may
remove the Securities Administrator, as applicable. If the Seller or the Trustee
removes the Trustee or the Securities Administrator, respectively under the
authority of the immediately preceding sentence, the Seller or the Trustee
shall
promptly appoint a successor Trustee or successor Securities Administrator
that
meets the requirements of Section 8.06, as applicable, by written instrument,
in
triplicate, one copy of which instrument shall be delivered to the Trustee
or
the Securities Administrator, as applicable, so removed, one copy to the
successor Trustee or successor Securities Administrator, as applicable, and
one
copy to the Master Servicer.
The
Majority Certificateholders may at any time remove the Trustee or the Securities
Administrator by written instrument or instruments delivered to the Seller
and
the Trustee; the Seller shall thereupon use its best efforts to appoint a
successor Trustee or successor Securities Administrator, as applicable, in
accordance with this Section.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor Trustee or a successor Securities Administrator,
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee or a
successor Securities Administrator, as applicable, as provided in Section 8.08
hereof. If the Trustee or the Securities Administrator is removed pursuant
to
this Section 8.07, it shall be reimbursed any outstanding and unpaid fees and
expenses, and if removed under the authority of the immediately preceding
paragraph, the Trustee or the Securities Administrator shall also be reimbursed
any outstanding and unpaid costs and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Master Servicer
resigns or is removed as Master Servicer hereunder, the Securities Administrator
shall have the right to resign immediately as Securities Administrator by giving
written notice to the Seller and the Trustee, with a copy to each Rating Agency;
provided that such resignation shall not become effective until acceptance
of
appointment by a successor Securities Administrator. Notwithstanding anything
to
the contrary herein, in the event that the Securities Administrator resigns
or
is removed as Securities Administrator hereunder, the Master Servicer shall
have
the right to resign immediately as Master Servicer by giving written notice
to
the Seller and the Trustee, with a copy to each Rating Agency; provided that
such resignation shall not become effective until acceptance of appointment
by a
successor Master Servicer.
126
SECTION
8.08. Successor
Trustee and Successor Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as provided
in
Section 8.07 hereof shall execute, acknowledge and deliver to the Depositor,
the
Seller and the Master Servicer and to its predecessor Trustee or Securities
Administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Securities
Administrator shall become effective, and such successor Trustee or successor
Securities Administrator, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator. The Depositor, the Seller, the Master Servicer and
the
predecessor Trustee or Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and
certainly vesting and confirming in the successor Trustee or Securities
Administrator, as applicable, all such rights, powers, duties and
obligations.
No
successor Trustee or Securities Administrator shall accept appointment as
provided in this Section 8.08 unless at the time of such acceptance such
successor Trustee or Securities Administrator shall be eligible under the
provisions of Section 8.06 hereof and the appointment of such successor Trustee
or Securities Administrator shall not result in a downgrading of the Senior
Certificates by either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee or Securities Administrator
as
provided in this Section 8.08, the successor Trustee or Securities Administrator
shall mail notice of the appointment of a successor Trustee or Securities
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
SECTION
8.09. Merger
or Consolidation of Trustee or Securities Administrator.
Any
entity into which the Trustee or the Securities Administrator may be merged
or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any entity succeeding to the corporate trust
business of the Trustee or the Securities Administrator, shall be the successor
of the Trustee or the Securities Administrator, as applicable, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08 hereof, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power, and the Trustee shall, and shall instruct
the Depositor to, execute and deliver all instruments to appoint one or more
Persons, approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity and for
the benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereof, and no notice to Certificateholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 8.08
hereof.
127
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
128
SECTION
8.11. Limitation
of Liability.
The
Certificates are executed by the Securities Administrator, not in its individual
capacity but solely as Securities Administrator on behalf of the Trust, in
the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as a
personal undertaking or agreement by the Trustee but is made and intended for
the purpose of binding only the Trust.
SECTION
8.12. Trustee
May Enforce Claims Without Possession of Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee (for the avoidance of doubt, in its
individual capacity and as Trustee on behalf of the Trust), its agents and
counsel, be for the ratable benefit or the Certificateholders in respect of
which such judgment has been recovered.
(b) The
Trustee shall afford the Seller, the Depositor and each Certificateholder upon
reasonable notice during normal business hours at its Corporate Trust Office
or
other office designated by the Trustee, access to all records maintained by
the
Trustee in respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. The Trustee shall cooperate fully with
the Seller, the Depositor and such Certificateholder and shall, subject to
the
first sentence of this Section 8.12(b), make available to the Seller, the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be requested with respect to the Trustee’s duties
hereunder. The Seller, the Depositor and the Certificateholders shall not have
any responsibility or liability for any action or failure to act by the Trustee
and are not obligated to supervise the performance of the Trustee under this
Agreement or otherwise.
(c) The
Securities Administrator shall afford the Seller, the Depositor, the Trustee
and
each Certificateholder upon reasonable notice during normal business hours
at
its offices at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or other office
designated by the Securities Administrator, access to all records maintained
by
the Securities Administrator in respect of its duties hereunder and access
to
officers of the Securities Administrator responsible for performing such duties.
Upon request, the Securities Administrator shall furnish the Depositor and
any
requesting Certificateholder with its most recent audited financial statements.
The Securities Administrator shall cooperate fully with the Seller, the
Depositor, the Trustee and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(c), make available to the Seller, the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be requested with respect to the Securities
Administrator’s duties hereunder. The Seller, the Depositor, the Trustee and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Securities Administrator and are not obligated to
supervise the performance of the Securities Administrator under this Agreement
or otherwise.
129
SECTION
8.13. Suits
for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur and
be
continuing, the Trustee may proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement, as the case may be,
by a
suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
SECTION
8.14. Waiver
of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
SECTION
8.15. Waiver
of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
SECTION
8.16. Appointment
of Custodians.
The
Trustee may appoint one or more custodians to hold all or a portion of the
related Mortgage Files as agent for the Trustee, by entering into a custodial
agreement. The custodian may at any time be terminated and a substitute
custodian appointed therefor by the Trustee. Subject to this Article VIII,
the
Trustee agrees to comply with the terms of each custodial agreement and to
enforce the terms and provisions thereof against the custodian for the benefit
of the Certificateholders having an interest in any Mortgage File held by such
custodian. Each custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus
of at
least $15,000,000 and shall be qualified to do business in the jurisdiction
in
which it holds any Mortgage File. The Seller shall pay from its own funds,
without any right to reimbursement, the fees, costs and expenses of each
custodian (including the costs of custodian’s counsel).
130
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, three REMIC elections
shall be made by the Trust. The Trustee shall sign and the Securities
Administrator shall file such elections on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last day
of
the calendar year in which the Certificates are issued. The regular interests
in
each REMIC created hereunder and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Securities Administrator shall apply to the Internal Revenue Service for an
employer identification number for each REMIC created hereunder by means of
a
Form SS-4 or other acceptable method and shall file a Form 8811 with the
Internal Revenue Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code.
(c) Except
as
provided in subsection (d) of this Section 9.01, the Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each REMIC
created hereunder, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to any such REMIC that involve the Internal Revenue Service or state
tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including the Securities Administrator’s duties as tax return
preparer).
(d) The
Securities Administrator shall prepare and file, and the Trustee shall sign
all
of the federal and state tax and information returns of each REMIC created
hereunder (collectively, the “Tax
Returns”)
as the
direct representative. The expenses of preparing and filing such Tax Returns
shall be borne by the Securities Administrator. Notwithstanding the foregoing,
the Securities Administrator shall have no obligation to prepare, file or
otherwise deal with partnership tax information or returns. In the event that
partnership tax information or returns are required by the Internal Revenue
Service, the Seller, at its own cost and expense, will prepare and file all
necessary returns. The Internal Revenue Service has issued OID regulations
under
Sections 1271 to 1275 of the Code generally addressing the treatment of debt
instruments issued with original issue discount. Under those regulations, debt
issued to one Person generally is aggregated in determining if there is OID.
Because certain Classes of Regular Certificates are expected to be issued to
one
Person (which intends to continue to hold the Regular Certificates indefinitely
and, in any case, for at least 30 days), the Securities Administrator, on behalf
of the Trust, intends to determine the existence and amount of any OID as if
those Classes of Regular Certificates were one debt instrument.
(e) The
Securities Administrator shall perform on behalf of each REMIC created hereunder
all reporting and other tax compliance duties that are the responsibility of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC Provisions
or other such guidance, the Securities Administrator, shall provide (i) to
the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the transfer of the Class A-R Certificate
to any disqualified organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC
Provisions.
131
(f) Each
of
the Trustee, the Securities Administrator and the Holders of Certificates (to
the extent that the affairs of the REMICs are within such Person’s control and
the scope of its specific responsibilities under the Agreement) shall take
any
action or cause any REMIC created hereunder to take any action necessary to
create or maintain the status of the REMIC created hereunder as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Trustee, the Securities Administrator or
the
Holder of a Residual Certificate shall take any action, cause any REMIC created
hereunder to take any action or fail to take (or fail to cause to be taken)
any
action that, under the REMIC Provisions, if taken or not taken, as the case
may
be, could result in an Adverse REMIC Event unless the Trustee and the Securities
Administrator have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not
result in an Adverse REMIC Event. In addition, prior to taking any action with
respect to any REMIC created hereunder or the assets therein, or causing any
such REMIC to take any action which is not expressly permitted under the terms
of this Agreement, any Holder of the Class A-R Certificate will consult with
the
Securities Administrator or its designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
such
REMIC, and no such Person shall take any such action or cause any REMIC created
hereunder to take any such action as to which the Securities Administrator
has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of the Class A-R Certificate shall pay when due any and all taxes imposed
on the related REMICs created hereunder by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by the Class
A-R
Certificateholder, the Securities Administrator shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of
the Class A-R Certificate or, if no such amounts are available, out of other
amounts held in the Distribution Account, and shall reduce amounts otherwise
payable to holders of regular interests in such related REMIC, as the case
may
be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each REMIC created hereunder on a calendar year
and
on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Securities Administrator shall enter into any arrangement
by
which any REMIC created hereunder will receive a fee or other compensation
for
services.
132
SECTION
9.02. Prohibited
Transactions and Activities.
Neither
the Depositor nor the Trustee shall sell, dispose of, or substitute for any
of
the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure
of a
Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination
of the REMICs created hereunder pursuant to Article X of this Agreement, (iv)
a
substitution pursuant to Article II hereof or (v) a repurchase of Mortgage
Loans
as contemplated hereunder, nor acquire any assets for any REMIC created
hereunder, nor sell or dispose of any investments in the Distribution Account
for gain, nor accept any contributions to any REMIC created hereunder after
the
Closing Date, unless it has received an Opinion of Counsel (at the expense
of
the party causing such sale, disposition, or substitution) that such
disposition, acquisition, substitution, or acceptance will not result in an
Adverse REMIC Event.
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor, the
Master Servicer, the Securities Administrator and the Trustee created hereby
(other than the obligation of the Securities Administrator to make certain
payments to Certificateholders after the final Distribution Date and the
obligation of the Master Servicer to send certain notices as hereinafter set
forth) shall terminate upon notice to the Trustee and the Securities
Administrator upon the earliest of (i) the Distribution Date on which the
Class Certificate Principal Balance (or Class Certificate Notional Balance
in
the case of the Interest-Only Certificates) of each Class of Certificates has
been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan, (iii) the optional purchase of the Mortgage Loans as
described in the following paragraph and (iv) the Latest Possible Maturity
Date.
Xxxxxxxxx
(solely in its capacity as a Servicer of the Mortgage Loans) may, at its option,
terminate this Agreement on any Distribution Date on which the aggregate of
the
Stated Principal Balances of the Mortgage Loans as of the end of the immediately
preceding Due Period is equal to or less than 10% of the aggregate Cut-Off
Date
Principal Balance, by purchasing, on such Distribution Date, all of the
outstanding Mortgage Loans and REO Properties at a price equal to the sum of
(i)
the outstanding Stated Principal Balances of the Mortgage Loans (other than
in
respect of REO Properties), (ii) the lesser of (x) the appraised value of any
REO Property as determined by the higher of two appraisals completed by two
independent appraisers selected by Xxxxxxxxx at the expense of Xxxxxxxxx less
the good faith estimate of the Master Servicer or the related Servicer, as
applicable, of Liquidation Expenses to be incurred in connection with its
disposal and (y) the Principal Balance of each Mortgage Loan related to any
REO
Property and (iii) in all cases, accrued and unpaid interest thereon at the
applicable Loan Rate through the end of the Due Period preceding the final
Distribution Date, plus unreimbursed Servicing Advances and Advances and any
unpaid Master Servicing Fees and Servicing Fees allocable to such Mortgage
Loans
and REO Properties, plus all amounts, if any, then due and owing to the Trustee,
the Master Servicer and the Securities Administrator (the “Termination
Price”).
133
In
addition, Xxxxx Fargo Bank, N.A. (solely in its capacity as the Master Servicer)
may, at its option, terminate this Agreement on any Distribution Date on which
the aggregate of the Stated Principal Balances of the Mortgage Loans as of
the
end of the immediately preceding Due Period is equal to or less than 5% of
the
aggregate Cut-Off Date Principal Balance, by purchasing, on such Distribution
Date, all of the outstanding Mortgage Loans and REO Properties at a price equal
to Termination Price; provided,
that
the
right of Xxxxx Fargo Bank, N.A. to repurchase all the Mortgage Loans shall
be
exercisable only if Xxxxxxxxx has not elected to exercise its optional
termination right on or before such date.
(b) Notice
of
any termination pursuant to the second or third paragraphs of Section 10.01(a),
specifying the Distribution Date (which shall be a date that would otherwise
be
a Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Securities Administrator for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator upon the Securities Administrator receiving notice of such date
from the Master Servicer by letter to the Certificateholders mailed not earlier
than the 10th day and not later than the 19th day of the month of such
final distribution specifying (1) the Distribution Date upon which final
distributions on the Certificates will be made upon presentation and surrender
of such Certificates at the office or agency of the Securities Administrator
therein designated, (2) the amount of any such final distribution and
(3) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Securities Administrator therein
specified.
(c) Upon
presentation and surrender of the Certificates, the Securities Administrator
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed
to
such Holders in accordance with the provisions of Section 4.01 hereof for
such Distribution Date.
(d) In
the
event that the applicable Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before such final
Distribution Date relating to these Certificates as put forth in paragraph
(b)
of this section, the Securities Administrator shall promptly following such
date
cause all funds in the Distribution Account not distributed in final
distribution to such Certificateholders to be withdrawn therefrom and credited
to the remaining Certificateholders by depositing such funds in a separate
account for the benefit of such Certificateholders, and the Securities
Administrator shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within nine months after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Master Servicer shall be entitled to all unclaimed funds
and
other assets which remain subject hereto, and the Securities Administrator
upon
transfer of such funds shall be discharged of any responsibility for such funds,
and the Certificateholders shall look to the Master Servicer for
payment.
134
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee at the direction of the Securities Administrator shall sell any
remaining assets of the Trust Fund to Xxxxxxxxx or its designee or Xxxxx Fargo
Bank, N.A. or its designee, as the case may be, for cash and, within 90 days
of
such sale, the Securities Administrator shall distribute to (or credit to the
account of) the Certificateholders the proceeds of such sale together with
any
cash on hand (less amounts retained to meet claims) in complete liquidation
of
the Trust Fund, and each REMIC created hereunder; and
(ii) The
Securities Administrator shall attach a statement to the final federal income
tax return for each REMIC created hereunder stating that pursuant to Treasury
Regulation §1.860F-1, the first day of the 90 day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the Trust Fund and
shall satisfy all requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder as evidenced by an Opinion of Counsel
delivered to the Trustee and the Securities Administrator obtained at the
expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee and the Securities Administration as their attorneys in fact to
undertake the foregoing steps.
ARTICLE
XI
DISPOSITION
OF TRUST ASSETS
SECTION
11.01. Disposition
of Trust Assets.
Neither
the Trust, nor this Agreement, may be terminated or voided, or any disposition
of the assets of the Trust effected, other than in accordance with the terms
hereof, except to the extent that Holders representing no less than the entire
beneficial ownership interest of the Certificates have so assented.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by Seller, the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, and without the consent
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be defective or inconsistent
with
any other provisions herein, (iii) to make any other provisions with
respect to matters or questions arising under this Agreement, which shall not
be
inconsistent with the provisions of this Agreement, or (iv) to conform the
terms
hereof to the description thereof provided in the Prospectus; provided,
however,
that any
such action listed in clause (i) through (iii) above shall be deemed
not to adversely affect in any material respect the interests of any
Certificateholder, if evidenced by (i) written notice to the Depositor, the
Seller, the Master Servicer, the Securities Administrator and the Trustee from
each Rating Agency that such action will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates with respect
to which it is a Rating Agency or (ii) an Opinion of Counsel stating that
such amendment shall not adversely affect in any material respect the interests
of any Certificateholder, is permitted by the Agreement and all the conditions
precedent, if any have been complied with, delivered to the Master Servicer,
the
Securities Administrator and the Trustee.
135
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
and
with the consent of the Majority Certificateholders for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided,
however,
that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
delay the timing of, payments on the Certificates that are required to be made
on any Certificate without the consent of the Holder of such Certificate,
(y) adversely affect in any material respect the interests of the Holders
of any Class of Certificates in a manner other than as described in clause
(x)
above, without the consent of the Holders of Certificates of such Class
evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the percentage of Voting Rights required by clause (y) above without the
consent of the Holders of all Certificates of such Class then outstanding.
Upon
approval of an amendment, a copy of such amendment shall be sent to each Rating
Agency.
Notwithstanding
any provision of this Agreement to the contrary, neither the Trustee nor the
Securities Administrator shall consent to any amendment to this Agreement unless
it shall have first received an Opinion of Counsel, delivered by and at the
expense of the Person seeking such Amendment (unless such Person is the Trustee
or the Securities Administrator, in which case the Trustee or the Securities
Administrator shall be entitled to be reimbursed for such expenses by the Trust
pursuant to Section 8.05 hereof), to the effect that such amendment will not
result in the imposition of a tax on any REMIC created hereunder pursuant to
the
REMIC Provisions or cause any REMIC created hereunder to fail to qualify as
a
REMIC at any time that any Certificates are outstanding and that the amendment
is being made in accordance with the terms hereof, such amendment is permitted
by this Agreement and all conditions precedent, if any, have been complied
with.
Promptly
after the execution of any such amendment the Securities Administrator shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Seller (but in no event at the expense of the Trustee or the
Securities Administrator), otherwise at the expense of the Trust, a copy of
such
amendment and the Opinion of Counsel referred to in the immediately preceding
paragraph to the Master Servicer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to
such reasonable regulations as the Securities Administrator may
prescribe.
136
The
Trustee and Securities Administrator may, but shall not be obligated to, enter
into any amendment pursuant to this 12.01 Section that affects its rights,
duties and immunities under this Agreement or otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Trustee at the expense of the Trust,
but
only upon direction of Certificateholders accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 12.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
137
SECTION
12.04. Governing
Law; Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service or delivered via
telecopy, to (a) in the case of the Seller, to Xxxxxxxxx Mortgage Home
Loans, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xx, Xxx Xxxxxx 00000,
Attention: Xxxxxxx Xxxxx (telecopy number (000) 000-0000), or such other
address or telecopy number as may hereafter be furnished to the Depositor,
the
Master Servicer, the Securities Administrator, and the Trustee in writing by
the
Seller, (b) in the case of the Trustee, to the Corporate Trust Office or such
other address or telecopy number as may hereafter be furnished to the Depositor,
the Master Servicer, the Securities Administrator, and the Seller in writing
by
the Trustee, (c) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Legal (telecopy number (000) 000-0000), or such other address or
telecopy number as may be furnished to the Seller, the Master Servicer, the
Securities Administrator, and the Trustee in writing by the Depositor and (d)
in
the case of the Master Servicer or Securities Administrator, for certificate
transfer purposes, at its Corporate Trust Office and for all other purposes
at
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, or for overnight delivery, at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (Attention: Xxxxxxxxx 0000-0),
Xxxxxxxxx no.: (000) 000-0000, or such other address or telecopy number as
may
be furnished to the Depositor, the Seller, the Securities Administrator, and
the
Trustee in writing by the Master Servicer. Any notice required or permitted
to
be mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Notice of any Event of Default shall be given by telecopy and by certified
mail.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have duly been given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder shall also be mailed to the appropriate party in the manner
set forth above.
138
SECTION
12.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
12.07. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.08. Notice
to the Rating Agencies.
(a) The
Securities Administrator shall be obligated to use its best reasonable efforts
promptly to provide notice to the Rating Agencies with respect to each of the
following of which a Responsible Officer of the Securities Administrator has
actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured or
waived;
(iii) the
resignation or termination of the Master Servicer, the Securities Administrator
or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class; and
(v) any
change in the location of any Account.
(b) In
addition, the Securities Administrator shall promptly furnish to the Rating
Agencies copies of each Statement to Certificateholders described in Section
5.04 hereof; if the Trustee is acting as a successor Master Servicer pursuant
to
Section 7.02 hereof, the Trustee shall notify the Rating Agencies of any event
that would result in the inability of the Trustee to make Advances and the
Master Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each
annual statement as to compliance described in Section 3.17 hereof;
(ii) each
annual assessment of compliance and attestation report described in Section
3.16
hereof; and
(iii) each
notice delivered pursuant to Section 5.05(b) hereof which relates to the fact
that the Master Servicer, as successor servicer, has not made an
Advance.
139
(c) All
notices to the Rating Agencies provided for in this Agreement shall be in
writing and sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Fitch, to:
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Residential Mortgages
If
to
S&P, to:
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
SECTION
12.09. Further
Assurances.
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
12.10. Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
SECTION
12.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Seller. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 12.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
140
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION
12.12. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
SECTION
12.13. Derivatives
Transactions.
The
Trust
and the Securities Administrator are authorized, at the direction and the
expense of the Holders of a majority of the Voting Rights allocated to the
Class
of Subordinate Certificates outstanding having the highest numerical designation
(or, if no Subordinate Certificates are outstanding, a majority of the Voting
Rights allocated to the Senior Certificates other than the Class A-R
Certificates), to enter into such derivative transactions for the benefit of
any
Certificateholders as may be deemed desirable by such Holders, so long as (i)
as
evidenced by one or more Opinions of Counsel addressed to the Securities
Administrator (at the expense of such Holders), the execution and delivery
of
such derivative transaction is permitted under this Agreement and the inclusion
of such derivative in the Trust will not be inconsistent with the ERISA
provisions contained herein or cause the Certificates (other than the
ERISA-Restricted Certificates) to fail to qualify for the Underwriter’s
Exemption, (ii) a REMIC Opinion (at the expense of such Holders) is delivered
to
the Securities Administrator, (iii) an Opinion of Counsel addressed to the
Securities Administrator (at the expense of such Holders) that the execution
and
delivery of such derivative transaction and documentation as presented to the
Securities Administrator is permitted under this Agreement, and (iv) the Rating
Agency shall have confirmed in writing that the inclusion of such derivative
would not result in a downgrade of its then rating of any Class of
Certificates.
[SIGNATURE
PAGE FOLLOWS]
141
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized, all as of the day and
year first above written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Depositor
By:
/s/
Xxx
Xxxxxxxxxx
Name:
Xxx Xxxxxxxxxx
Title:
Vice President
XXXXXXXXX
MORTGAGE HOME LOANS, INC., as
Seller
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President
XXXXX
FARGO BANK, N.A.,
as
Master Servicer
By:
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By:
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
LASALLE
BANK NATIONAL ASSOCIATION, as Trustee and Custodian
By:
/s/
Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title:
Vice President
|
STATE
OF CONNECTICUT
|
)
|
|
)
ss.:
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
3rd
day of
March 2008, before me, a notary public in and for said State, personally
appeared Xxx
Xxxxxxxxxx
known to
me to be a Vice President of Greenwich Capital Acceptance, Inc., a Delaware
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxxx X.
Xxxxxxxx
Notary
Public
|
STATE
OF NEW MEXICO
|
)
|
|
)
ss.:
|
|
COUNTY
OF SANTA FE
|
)
|
On
the
3rd day
of
March 2008, before me, a notary public in and for said State, personally
appeared Xxxxxxx X. Xxxxx known to me to be a Senior Vice President of Xxxxxxxxx
Mortgage Home Loans, Inc., a Delaware corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxx X.
Xxxxx
Notary
Public
|
STATE
OF MARYLAND
|
)
|
|
)
ss.:
|
|
COUNTY
OF ARUNDEL
|
)
|
On
the
3rd day of March 2008, before me, a notary public in and for said State,
personally appeared Xxxxx Xxxxxx known to me to be a Vice President of Xxxxx
Fargo Bank, N.A. that executed the within instrument, and also known to me
to be
the person who executed it on behalf of said corporation, and acknowledged
to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxxxxx
Xxxxxxxxxx
Notary
Public
|
STATE
OF ILLINOIS
|
)
|
|
)
ss.:
|
|
COUNTY
OF XXXX
|
)
|
On
the
3rd
day of
March 2008, before me, a notary public in and for said State, personally
appeared Xxxxx Xxxx known to me to be Vice President of LaSalle Bank National
Association, a national banking association that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/
Xxxxx X’Xxxx
Notary
Public
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan
Schedule”
at the Washington DC offices of XxXxx Xxxxxx LLP]
EXHIBIT
A-1
FORM
OF SENIOR CERTIFICATE (OTHER THAN SENIOR INTEREST-ONLY
CERTIFICATES)
CLASS
[1][2][3][4][A]-[ ] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE SECURITIES ADMINISTRATOR
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT ACQUIRED SUCH CERTIFICATE UNDER AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.
[Applicable only to the Class 1A-2, Class 2A-2, Class 3A-2 and Class 4A-2
Certificates]
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF OF, AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406
OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR BY
ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, UNLESS IT REPRESENTS
AND WARRANTS, IF SUCH CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING
UNDERWRITING, THAT THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE, THROUGHOUT
THE PERIOD THAT IT HOLDS SUCH CERTIFICATE, WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
WHICH IS NOT COVERED BY PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, THE NON-FIDUCIARY SERVICE
PROVIDER EXEMPTION UNDER SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20)
OF
THE CODE OR SOME OTHER APPLICABLE ADMINISTRATIVE OR STATUTORY EXEMPTION. EACH
INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN
COMPLIANCE WITH THE FOREGOING AND WILL FURTHER BE DEEMED TO REPRESENT, WARRANT
AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER SUCH
CERTIFICATE IN VIOLATION OF THE FOREGOING. [Applicable
only to any Certificate rated at least “BBB-” upon
acquisition]
A-1-1
UNTIL
THIS CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) AN OPINION OF
COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF ANY OF THE TRUSTEE, THE SECURITIES ADMINISTRATOR
OR
THE TRUST, ADDRESSED TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, ANY SERVICER, THE
SECURITIES ADMINISTRATOR OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE
EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. A TRANSFEREE
ACQUIRING A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION IN THIS PARAGRAPH.
[Applicable only to the Class 1A-2, Class 2A-2, Class 3A-2 and Class 4A-2
Certificates]
A-1-2
|
Certificate
No.:
|
[
]
|
|
Cut-Off
Date:
|
February
1, 2008
|
|
First
Distribution Date:
|
March
25, 2008
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate
|
|
|
(“Denomination”):
|
$[ ]
|
|
Original
Class Certificate
|
|
|
Principal
Balance of this
|
|
|
Class:
|
$[
]
|
|
Percentage
Interest:
|
[
]%
|
|
Pass-Through
Rate:
|
Weighted
Average
|
|
CUSIP:
|
88522U
__
_
|
|
Class:
|
[1][2][3][4]A-[ ]
|
|
Assumed
Final Distribution Date:
|
April
25, 2038
|
A-1-3
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates,
Series
2008-1
Class
[1][2][3][4]A-[ ]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
adjustable rate and hybrid, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Certificate at any time
may be less than the Initial Certificate Principal Balance set forth on the
face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller,
the
Master Servicer, the Securities Administrator or the Trustee referred to below
or any of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust consisting primarily of the
Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”). The Trust was created pursuant to the pooling and servicing
agreement dated as of February 1, 2008 (the “Agreement”) by and among the
Depositor, Xxxxxxxxx Mortgage Home Loans, Inc. (“TMHL”), as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”)
and securities administrator (the “Securities Administrator”) and the LaSalle
Bank National Association, as trustee (the “Trustee”) and custodian (the
“Custodian”). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
No
transfer of this Certificate shall be made unless such disposition is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any transfer, the
transferee will be deemed to represent and warrant that that it acquired such
certificate under an exemption to registration under the 1933 Act. [Applicable
only to the Non-Offered Certificates]
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
A-1-4
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
March ___, 0000
XXXXXXXXX
MORTGAGE SECURITIES TRUST 2008-1
|
By:
|
XXXXX
FARGO BANK, N.A.,
not
in its individual capacity,
but
solely as Securities
Administrator
|
By
___________________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
A-1-5
EXHIBIT
A-2
FORM
OF SENIOR INTEREST-ONLY CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE SECURITIES ADMINISTRATOR
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT ACQUIRED SUCH CERTIFICATE UNDER AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF OF, AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406
OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR BY
ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, UNLESS IT REPRESENTS
AND WARRANTS, IF SUCH CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING
UNDERWRITING, THAT THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE, THROUGHOUT
THE PERIOD THAT IT HOLDS SUCH CERTIFICATE, WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
WHICH IS NOT COVERED BY PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, THE NON-FIDUCIARY SERVICE
PROVIDER EXEMPTION UNDER SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20)
OF
THE CODE OR SOME OTHER APPLICABLE ADMINISTRATIVE OR STATUTORY EXEMPTION. EACH
INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN
COMPLIANCE WITH THE FOREGOING AND WILL FURTHER BE DEEMED TO REPRESENT, WARRANT
AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER SUCH
CERTIFICATE IN VIOLATION OF THE FOREGOING.
A-2-1
UNTIL
THIS CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) AN OPINION OF
COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF ANY OF THE TRUSTEE, THE SECURITIES ADMINISTRATOR
OR
THE TRUST, ADDRESSED TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, ANY SERVICER, THE
SECURITIES ADMINISTRATOR OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE
EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. A TRANSFEREE
ACQUIRING A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION IN THIS PARAGRAPH.
THIS
CERTIFICATE IS AN INTEREST-ONLY CERTIFICATE AND, ACCORDINGLY, IS NOT ENTITLED
TO
ANY DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
A-2-2
|
Certificate
No.:
|
[ ]
|
|
Cut-Off
Date:
|
February
1, 2008
|
|
First
Distribution Date:
|
March
25, 2008
|
|
Initial
Certificate Notional Amount
|
|
|
of
this Certificate
|
|
|
(“Denomination”):
|
[ ]
|
|
Original
Class Certificate
|
|
|
Notional
Amount of this
|
|
|
Class:
|
[ ]
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
[ ]
|
|
CUSIP:
|
88522U
__
_
|
|
Class:
|
[ ]-AX[ ]
|
|
Final
Scheduled Distribution Date:
|
[ ]
|
A-2-3
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates,
Series
2008-1
Class
[1][2][3][4]-AX[ ]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
adjustable rate and hybrid, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Interest
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Notional Amount of this Certificate at any time
may
be less than the Initial Certificate Notional Amount set forth on the face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller,
the
Master Servicer, the Securities Administrator or the Trustee referred to below
or any of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Notional Amount) in certain
monthly distributions with respect to a Trust consisting primarily of the
Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”). The Trust was created pursuant to the pooling and servicing
agreement dated as of February 1, 2008 (the “Agreement”) by and among the
Depositor, Xxxxxxxxx Mortgage Home Loans, Inc. (“TMHL”), as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”)
and securities administrator (the “Securities Administrator”) and the LaSalle
Bank National Association, as trustee (the “Trustee”) and custodian (the
“Custodian”). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
No
transfer of this Certificate shall be made unless such disposition is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any transfer, the
transferee will be deemed to represent and warrant that that it acquired such
certificate under an exemption to registration under the 1933 Act.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
A-2-4
EXHIBIT
B
[Reserved]
B-1
EXHIBIT
C
FORM
OF CLASS A-R CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) IF SUCH CERTIFICATE
HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION THAT
THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60 OR (C) AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR,
WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF ANY OF THE TRUSTEE, THE
SECURITIES ADMINISTRATOR OR THE TRUST, ADDRESSED TO THE SECURITIES
ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE
WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER
SERVICER, ANY SERVICER, THE SECURITIES ADMINISTRATOR OR THE DEPOSITOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO
ANY
LIABILITY. A TRANSFEREE ACQUIRING A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED
TO
HAVE MADE THE REPRESENTATION IN THIS PARAGRAPH.
C-1
|
Certificate
No.:
|
1
|
|
Cut-Off
Date:
|
February
1, 2008
|
|
First
Distribution Date:
|
March
25, 2008
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate:
|
$100
|
|
Original
Class Certificate
|
|
|
Principal
Balance of this
|
|
|
Class:
|
$100
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
Weighted
Average
|
|
CUSIP:
|
88522U
__
_
|
|
Class:
|
A-R
|
|
Assumed
Final Distribution Date:
|
April
25, 2038
|
C-2
Xxxxxxxxx
Mortgage Securities Trust 2008-1
Mortgage
Loan Pass-Through Certificates,
Series
2008-1
Class
A-R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
adjustable rate and hybrid, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that _________________________ is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Greenwich Capital Acceptance, Inc. (the “Depositor”). The Trust was created
pursuant to the pooling and servicing agreement dated as of February 1, 2008
(the “Agreement”) by and among the Depositor, Xxxxxxxxx Mortgage Home Loans,
Inc. (“TMHL”), as seller (the “Seller”), Xxxxx Fargo Bank, N.A., as master
servicer (the “Master Servicer”) and securities administrator (the “Securities
Administrator”) and LaSalle Bank National Association, as trustee (the
“Trustee”) and Custodian (the “Custodian”). This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. To the extent not defined herein,
the
capitalized terms used herein have the meanings assigned in the
Agreement.
Any
distribution of the proceeds of any remaining assets of the Trust will be made
only upon presentment and surrender of this Certificate at the Corporate Trust
Office or the office or agency maintained by the Securities
Administrator.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Securities Administrator
of (a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Securities Administrator as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest
in
this Certificate if it has actual knowledge that the proposed transferee is
not
a Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee.
The Securities Administrator will provide the Internal Revenue Service and
any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class A-R Certificate in violation of the restrictions
mentioned above.
C-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized officer of the
Securities Administrator.
C-4
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
March ___, 0000
XXXXXXXXX
MORTGAGE SECURITIES TRUST 2008-1
|
By:
|
XXXXX
FARGO BANK, N.A.,
not
in its individual capacity,
but
solely as Securities
Administrator
|
By
_____________________________________________
This
is
the A-R Certificate
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
C-5
EXHIBIT
D
FORM
OF SUBORDINATE CERTIFICATE
CLASS
B-[ ]
CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE SECURITIES ADMINISTRATOR
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT ACQUIRED SUCH CERTIFICATE (I)(A) PURSUANT
TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT
OR
(B) AS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A [Applicable
only to the Class B-4, Class B-5 and Class B-6
Certificates].
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF OF, AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406
OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR BY
ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, UNLESS IT REPRESENTS
AND WARRANTS, IF SUCH CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING
UNDERWRITING, THAT THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE, THROUGHOUT
THE PERIOD THAT IT HOLDS SUCH CERTIFICATE, WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
WHICH IS NOT COVERED BY PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, THE NON-FIDUCIARY SERVICE
PROVIDER EXEMPTION UNDER SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20)
OF
THE CODE OR SOME OTHER APPLICABLE ADMINISTRATIVE OR STATUTORY EXEMPTION. EACH
INVESTOR IN THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN
COMPLIANCE WITH THE FOREGOING AND WILL FURTHER BE DEEMED TO REPRESENT, WARRANT
AND COVENANT THAT IT WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER SUCH
CERTIFICATE IN VIOLATION OF THE FOREGOING. [Applicable
only to Class B-1, Class B-2 and B-3 Certificates]
D-1
UNTIL
THIS CERTIFICATE HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) AN OPINION OF
COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF ANY OF THE TRUSTEE, THE SECURITIES ADMINISTRATOR
OR
THE TRUST, ADDRESSED TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, ANY SERVICER, THE
SECURITIES ADMINISTRATOR OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE
EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. A TRANSFEREE
ACQUIRING A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION IN THIS PARAGRAPH. [Applicable
only to Class B-1, Class B-2, and Class B-3
Certificates]
D-2
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) IF SUCH CERTIFICATE
HAS BEEN SUBJECT TO AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION THAT
THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60 OR (C) AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR,
WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF ANY OF THE TRUSTEE, THE
SECURITIES ADMINISTRATOR OR THE TRUST, ADDRESSED TO THE SECURITIES
ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE
WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER
SERVICER, ANY SERVICER, THE SECURITIES ADMINISTRATOR OR THE DEPOSITOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO
ANY
LIABILITY. A TRANSFEREE ACQUIRING A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED
TO
HAVE MADE THE REPRESENTATION IN THIS PARAGRAPH. THIS CERTIFICATE IS SUBORDINATE
IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[Applicable
only to Class B-4, Class B-5 and Class B-6
Certificates]
D-3
|
Certificate
No.:
|
[
]
|
|
Cut-Off
Date:
|
February
1, 2008
|
|
First
Distribution Date:
|
March
25, 2008
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate
|
|
|
(“Denomination”):
|
$[ ]
|
|
Original
Class Certificate
|
|
|
Principal
Balance of this
|
|
|
Class:
|
$[ ]
|
|
Percentage
Interest:
|
[ ]%
|
|
Pass-Through
Rate:
|
Weighted
Average
|
|
CUSIP:
|
88522U
__
_
|
|
Class:
|
B-[ ]
|
|
Assumed
Final Distribution Date:
|
Xxxxx
00, 0000
|
X-0
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates,
Series
2008-1
Class
B-[
]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
adjustable rate and hybrid, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Certificate at any time
may be less than the Initial Certificate Principal Balance set forth on the
face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller,
the
Master Servicer, the Securities Administrator or the Trustee referred to below
or any of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust consisting primarily of the
Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”). The Trust was created pursuant to the pooling and servicing
agreement dated as of February 1, 2008 (the “Agreement”) by and among the
Depositor, Xxxxxxxxx Mortgage Home Loans, Inc. (“TMHL”), as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”)
and securities administrator (the “Securities Administrator”) and LaSalle Bank
National Association, as trustee (the “Trustee”) and custodian (the
“Custodian”). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
No
transfer of this Certificate shall be made unless such disposition is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any transfer, the
transferee will be deemed to represent and warrant that that it acquired such
certificate under an exemption to registration under the 1933 Act. [Applicable
only to the Class B-1, Class B-2 and Class B-3
Certificates]
No
transfer of this Certificate shall be made unless such disposition is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any transfer, the
transferee will be deemed to represent and warrant that that it acquired such
certificate as a “Qualified Institutional Buyer” as defined in Rule 144A under
the 1933 Act that purchases for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the transfer is
being
made in reliance on Rule 144A. [Applicable
only to the Class B-4, Class B-5 and Class B-6
Certificates]
D-5
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator.
D-6
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
March ___, 0000
XXXXXXXXX
MORTGAGE SECURITIES TRUST 2008-1
|
By:
|
XXXXX
FARGO BANK, N.A.,
not
in its individual capacity,
but
solely as Securities
Administrator
|
By
______________________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A.,
as
Securities Administrator
D-7
EXHIBIT
E
FORM
OF REVERSE OF THE CERTIFICATES
XXXXXXXXX
MORTGAGE SECURITIES TRUST 2008-1
Mortgage
Loan Pass-Through Certificates, Series 2008-1
Reverse
Certificate
This
Certificate is one of a duly authorized issue of Certificates designated as
Xxxxxxxxx Mortgage Securities Trust 2008-1, Mortgage Loan Pass-Through
Certificates, Series 2008-1 (herein collectively called the “Certificates”), and
representing a beneficial ownership interest in the Trust governed by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th
day of
each month, or if the 25th
day is
not a Business Day, then on the next succeeding Business Day (the “Distribution
Date”), commencing on the first Distribution Date specified on the face hereof,
to the Person in whose name this Certificate is registered at the close of
business on the applicable Record Date in an amount equal to the product of
the
Percentage Interest evidenced by this Certificate and the amount required to
be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made, (i) in the case of a Physical Certificate,
by
check or money order mailed to the address of the person entitled thereto as
it
appears on the Certificate Register or, upon the request of a Certificateholder,
by wire transfer as set forth in the Agreement and (ii) in the case of a
Book-Entry Certificate, to the Depository, which shall credit the amounts of
such distributions to the accounts of its Depository Participants in accordance
with its normal procedures. The final distribution on each Certificate will
be
made in like manner, but only upon presentment and surrender of such Certificate
at the office or agency of the Securities Administrator specified in the notice
to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time, by the
Depositor, the Seller, the Master Servicer, the Securities Administrator, the
Trustee and Holders of the requisite percentage of the Percentage Interests
of
each Class of Certificates affected by such amendment, as specified in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Securities Administrator upon surrender of this Certificate for registration
of transfer at the office or agency maintained by the Securities Administrator
accompanied by a written instrument of transfer in form satisfactory to the
Securities Administrator and the Certificate Registrar duly executed by the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Subject
to the terms of the Agreement, each Class of Book-Entry Certificates will be
registered as being held by the Depository or its nominee and beneficial
interests will be held by Certificate Owners through the book-entry facilities
of the Depository or its nominee in minimum denominations of $25,000 and
integral dollar multiples of $1 in excess thereof, in the case of the Class
1A-1, Class 1A-2, Class 2A-1, Class 2A-2, Class 3A-1, Class 3A-2, Class 4A-1,
Class 4A-2, Class B-1, Class B-2 and Class B-3 Certificates (provided,
that,
such Certificates must be purchased in minimum total investments of at least
$100,000), $100,000 minimum notional amounts and increments of $1,000 in excess
thereof, in the case of the Class 1-AX, Class 2-AX, Class 3-AX and Class 4-AX
Certificates and $100,000 and integral dollar multiples of $1 in excess thereof,
in the case of the Class B-4, Class B-5 and Class B-6 Certificates, except
that
one Certificate of each such Class of Certificates may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Class Certificate Principal Balance
or Class Certificate Notional Balance of such Class on the Closing Date.
[Applicable
to all Classes of Certificates except the Class A-R]
[Each
of
the Class A-R Certificates will be issued as a single Certificate and maintained
in physical form, representing the entire Percentage Interest in that Class.]
[Applicable
to the Class A-R Certificate.]
[The
Class A-R Certificate is issuable only in a Percentage Interest of 100%.]
[Applicable
to Class A-R Certificates only.]
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
E-2
The
Depositor, the Seller, the Master Servicer, the Securities Administrator and
the
Trustee and any agent of the Depositor or the Trustee may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee nor any such agent shall be affected
by
any notice to the contrary.
On
any
Distribution Date on which the aggregate of the Stated Principal Balances of
the
Mortgage Loans on such date is equal to or less than 20% of the aggregate
Cut-Off Date Principal Balance, Xxxxxxxxx Mortgage, Inc. will have the option
to
call the Certificates for a purchase price equal to (i) for all Certificates
(other than the Interest-Only Certificates and the Class A-R Certificates)
the
sum of (1) the aggregate Class Certificate Principal Balance and (2) the accrued
interest thereon at the related Pass-Through Rates, less amounts of interest
and
principal otherwise being paid to such Holders on such Distribution Date, (ii)
for the Interest-Only Certificates the present value as of the date of such
purchase of the remaining payments to be based on each of the Interest-Only
Certificates (such present value to be based upon a discount rate that will
approximate the expected Yield to Maturity of the Interest-Only Certificates
and
(iii) for the Class A-R Certificate, $1.00.
On
any
date on which the aggregate of the Stated Principal Balances of the Mortgage
Loans on such date is equal to or less than 10% of the Cut-Off Date Aggregate
Principal Balance, Xxxxxxxxx Mortgage Home Loans, Inc., in its capacity as
a
Servicer (hereinafter “TMHL”), may purchase, on the related Distribution Date,
all of the outstanding Mortgage Loans and REO Properties at a price equal to
the
Termination Price. In the event that TMHL does not exercise its right of
optional termination, on any date on which the aggregate of the Stated Principal
Balances of the Mortgage Loans on such date is equal to or less than 5% of
the
Cut-Off Date Aggregate Principal Balance, Xxxxx Fargo Bank, N.A., in its
capacity as Master Servicer, may purchase, on the related Distribution Date,
all
of the outstanding Mortgage Loans and REO Properties at a price equal to the
Termination Price. In the event that neither TMHL nor the Master Servicer
exercises any right of optional termination, the obligations and
responsibilities created by the Agreement will terminate upon notice to the
Securities Administrator upon the earliest of (i) the Distribution Date on
which
the Class Certificate Principal Balance of each Class of Certificates has been
reduced to zero, (ii) the final payment or other liquidation of the last
Mortgage Loan in any Loan Group and (iii) the Latest Possible Maturity
Date.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_____________________________________________________________________________.
Dated:
_____________
Signature
by or on behalf of assignor
E-4
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
for
the
account
of___________________________________________________________________________________________________,
account
number ________________________, or, if mailed by check, to
________________________________________________________
__________________________________________________________________________________________________________________
Applicable
statements should be mailed to
________________________________________________________________________________
_________________________________________________________________________________________________________________.
This
information is provided by
_________________________________________________________________________________,
the
assignee named above, or
_________________________________________________________________________________________,
as
its
agent.
E-5
EXHIBIT
F
REQUEST
FOR RELEASE
Date
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Pooling and Servicing Agreement dated as of February 1, 2008 among
Greenwich Capital Acceptance, Inc., as Depositor, Xxxxxxxxx Mortgage Home Loans,
Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities
Administrator and you, as Trustee and Custodian (the “Pooling and Servicing
Agreement”), the undersigned [Master Servicer] [Servicer] hereby requests a
release of the Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The [Master Servicer] [Servicer] hereby certifies that
all
amounts received in connection with the loan have been or will be credited
to
the Collection Account or the Distribution Account (whichever is applicable)
pursuant to the Pooling and Servicing Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The [Master Servicer] [Servicer] hereby certifies that a
Qualified Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
4. Mortgage
Loan repurchased. (The [Master Servicer] [Servicer] hereby certifies that the
Purchase Price has been credited to the Collection Account or the Distribution
Account (whichever is applicable) pursuant to the Pooling and Servicing
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you within ten (10) days of our receipt of
the
Mortgage File, except if the Mortgage Loan has been paid in full, or repurchased
or substituted for a Qualified Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us without obligation to return to
you).
F-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
_____________________________________
[Name
of
[Master Servicer] [Servicer]]
By:__________________________________
Name:
Title:
Servicing Officer
F-2
EXHIBIT
G-1
FORM
OF RECEIPT OF MORTGAGE NOTES
RECEIPT
OF MORTGAGE NOTES
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates, Series
2008-1
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of February
1,
2008, among Greenwich Capital Acceptance, Inc., as Depositor, Xxxxxxxxx Mortgage
Home Loans, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities Administrator and LaSalle Bank National Association, as Trustee
and
Custodian, we hereby acknowledge the receipt of the original Mortgage Note
with
respect to each Mortgage Loan listed on Exhibit 1, with any exceptions thereto
listed on Exhibit 2.
LASALLE
BANK NATIONAL
ASSOCIATION,
as Trustee
By:
Name:
Title:
Dated:
G-1-1
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
G-1-2
EXHIBIT
2
EXCEPTION
REPORT
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
G-1-3
EXHIBIT
G-2
FORM
OF INTERIM CERTIFICATION OF TRUSTEE
INTERIM
CERTIFICATION OF TRUSTEE
[date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxxxxxx
Mortgage Home Loans, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx, Xxx Xxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: |
Pooling
and Servicing Agreement among Greenwich Capital Acceptance, Inc.,
as
Depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as Seller, Xxxxx
Fargo
Bank, N.A., as Master Servicer and Securities Administrator and LaSalle
Bank National Association, as Trustee and Custodian, Xxxxxxxxx Mortgage
Loan Pass-Through Certificates,
Series 2008-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
schedule) it has received:
|
(i)
|
all
documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its
possession;
|
|
(ii)
|
such
documents have been reviewed by the Trustee and have not been mutilated,
damaged or torn and relate to such Mortgage Loan;
and
|
|
(iii)
|
based
on the Trustee’s examination and only as to the foregoing, the information
set forth in the Mortgage Loan Schedule that corresponds to items
(i),
(ii), (iii), (xiii), (xiv) and (xviii) of the Mortgage Loan Schedule
accurately reflects information set forth in the Mortgage
File.
|
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
G-2-1
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
LASALLE
BANK NATIONAL
ASSOCIATION,
as Trustee
By:
__________________________________
Name:
________________________________
Title:
_________________________________
G-2-2
EXHIBIT
G-3
FORM
OF FINAL CERTIFICATION OF TRUSTEE
FINAL
CERTIFICATION OF TRUSTEE
[date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxxxxxx
Mortgage Home Loans, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx, Xxx Xxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: |
Pooling
and Servicing Agreement among Greenwich Capital Acceptance, Inc.,
as
Depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as Seller, Xxxxx
Fargo
Bank, N.A., as Master Servicer and Securities Administrator and
LaSalle
Bank National Association, as Trustee and Custodian, Xxxxxxxxx
Mortgage
Loan Pass-Through Certificates,
Series 2008-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received all documents required to be
delivered to the Trustee pursuant to Section 2.01 of the Pooling and Servicing
Agreement.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (i), (ii), (iii), (xiii), (xiv) and
(xviii) of the definition of the “Mortgage Loan Schedule” in Section 1.01 of the
Pooling and Servicing Agreement accurately reflects information set forth in
the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
G-3-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
LASALLE
BANK NATIONAL
ASSOCIATION,
as Trustee
By:
__________________________________
Name:
________________________________
Title:
_________________________________
G-3-2
EXHIBIT
H
FORM
OF LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
______________________ who first being duly sworn deposes and says: Deponent
is
______________________ of Xxxxxxxxx Mortgage Home Loans, Inc. (the “Seller”) and
who has personal knowledge of the facts set out in this affidavit.
On
___________________, _________________________ did execute and deliver a
promissory note in the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is currently lost
and
unavailable after diligent search has been made. The Seller’s records show that
an amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and such Seller is still owner and holder in due course of
said
lost note.
The
Seller executes this Affidavit for the purpose of inducing LaSalle Bank National
Association, as trustee on behalf of Xxxxxxxxx Mortgage Securities Trust 2008-1,
Mortgage Loan Pass-Through Certificates, Series 2008-1, to accept the transfer
of the above described loan from the Seller.
The
Seller agrees to indemnify LaSalle Bank National Association and Greenwich
Capital Acceptance, Inc. and hold them harmless for any losses incurred by
such
parties resulting from the fact that the above described Note has been lost
or
misplaced.
By:
__________________________________
__________________________________
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
On
this
____ day of ___________ 20__, before me, a Notary Public, in and for said County
and State, appeared ________________________, who acknowledged the extension
of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness
my hand and Notarial Seal this ____ day of _______ 20__.
_______________________________
_______________________________
My
commission expires _______________.
H-1
EXHIBIT
I
FORM
OF ERISA REPRESENTATION
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
| Re: |
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates, Series
2008-1
|
Ladies
and Gentlemen:
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which she makes this affidavit.
2. With
respect to an ERISA-Restricted Certificate, the Transferee either (x) is not
an
employee benefit plan that is subject to the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), or a plan or an arrangement that is subject
to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) (a
“Plan”), nor are we acting on behalf of any such plan or an arrangement nor
using the assets of any such plan or arrangement to effect such transfer; (y)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting,
is
an insurance company which is purchasing such Certificates with funds contained
in an “insurance company general account” (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the
purchase and holding of such Certificates are covered under Section I and III
of
PTCE 95-60; or (z) shall deliver to the Securities Administrator and the
Depositor an opinion of counsel (a “Benefit Plan Opinion”) satisfactory to the
Securities Administrator, and upon which the Securities Administrator and the
Depositor shall be entitled to rely, to the effect that the purchase or holding
of such Certificate by the Transferee will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Master Servicer, any Servicer,
the Securities Administrator or the Depositor to any obligation in addition
to
those undertaken by such entities in the Pooling and Servicing Agreement or
to
any liability, which opinion of counsel shall not be an expense of the Trustee,
the Securities Administrator or the Trust.
3. With
respect to a Certificate (other than an ERISA-Restricted Certificate), the
Transferee either (i) not a Plan nor a person acting on behalf of any such
plan
or an arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if such Certificate (other than an ERISA-Restricted
Certificate) has been the subject of an ERISA-Qualifying Underwriting, the
acquisition and holding of the Certificate (other than an ERISA-Restricted
Certificate) are eligible for exemptive relief under Prohibited Transaction
Class Exemption (“PTCE”) 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23,
the statutory exemption for non-fiduciary service providers under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code or some other applicable
administrative or statutory exemption.
I-1-1
4. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of February 1, 2008 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as Seller,
Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator and
LaSalle Bank National Association, as Trustee and Custodian, no transfer of
the
ERISA-Restricted Certificates shall be permitted to be made to any person unless
the Depositor and Securities Administrator have received a certificate from
such
transferee in the form hereof.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF INVESTMENT LETTER [NON-RULE 144A]
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates, Series 2008-1
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor”, as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) if we are acquiring an ERISA-Restricted
Certificate either (i) we are not an employee benefit plan that is subject
to
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or an arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the “Code”) (a “Plan”), nor are we acting on behalf of
any such plan or an arrangement nor using the assets of any such plan or
arrangement to effect such transfer; (ii) if the Certificates have been the
subject of an ERISA-Qualifying Underwriting, we are an insurance company which
is purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and the purchase and holding of
such Certificates are covered under Section I and III of PTCE 95-60 or (iii)
we
have presented an Opinion of Counsel satisfactory to the Securities
Administrator, which Opinion of Counsel shall not be an expense of either the
Securities Administrator or the Trust, addressed to the Securities Administrator
and the Depositor, to the effect that the purchase and holding of such
ERISA-Restricted Certificate that is a Physical Certificate will not result
in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Master Servicer, any Servicer,
the Securities Administrator or the Depositor to any obligation in addition
to
those expressly undertaken in this Agreement or to any liability, (e)
if
J-1-1
we
are acquiring a Certificate (other than an ERISA-Restricted Certificate), either
(i) we are not a Plan nor a person acting on behalf of any such plan or an
arrangement nor using the assets of any such plan or arrangement to effect
such
transfer or (ii) if such Certificate (other than an ERISA-Restricted
Certificate) has been the subject of an ERISA-Qualifying Underwriting, the
acquisition and holding of the Certificate (other than an ERISA-Restricted
Certificate) are eligible for exemptive relief under Prohibited Transaction
Class Exemption (“PTCE”) 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23,
the statutory exemption for non-fiduciary service providers under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code or some other applicable
administrative or statutory exemption, (f) we are acquiring the Certificates
for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (i) below),
(g)
we have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in
a
violation of Section 5 of the Act, and (h) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we
will
at our expense provide an opinion of counsel to the addressees of this
Certificate satisfactory to the Securities Administrator that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act,
(2) the purchaser or transferee of such Certificate has executed and delivered
to you a certificate to substantially the same effect as this certificate,
and
(3) the purchaser or transferee has otherwise complied with any conditions
for
transfer set forth in the Pooling and Servicing Agreement.
Very
truly yours,
[NAME
OF TRANSFEREE]
By:
Authorized
Officer
X-0-0
XXXXXXX
X-0
FORM
OF RULE 144A INVESTMENT LETTER
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Xxxxxxxxx
Mortgage Securities Trust 2008-1,
Mortgage
Loan Pass-Through Certificates, Series 2008-1
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
if we are acquiring an ERISA-Restricted Certificate, either: (i) we are not
an
employee benefit plan that is subject to the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), or a plan or an arrangement that is subject
to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) (a
“Plan”), nor are we acting on behalf of any such plan or arrangement or using
the assets of any such plan or arrangement of effect such transfer; (ii) if
the
Certificate
J-2-1
is
the
subject of an ERISA-Qualifying Underwriting, we are an insurance company which
is purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and the purchase and holding of
such Certificates are covered under Section I and III of PTCE 95-60 or (iii)
we
have presented an Opinion of Counsel satisfactory to the Securities
Administrator, which Opinion of Counsel shall not be an expense of either the
Securities Administrator or the Trust, addressed to the Securities Administrator
and the Depositor, to the effect that the purchase and holding of such
ERISA-Restricted Certificate that is a Physical Certificate will not result
in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Master Servicer, any Servicer,
the Securities Administrator or the Depositor to any obligation in addition
to
those expressly undertaken in this Agreement or to any liability, (d) if we
are
acquiring a Certificate (other than an ERISA-Restricted Certificate), either
(i)
we are not a Plan nor a person acting on behalf of any such plan or an
arrangement nor using the assets of any such plan or arrangement to effect
such
transfer or (ii) if such Certificate (other than an ERISA-Restricted
Certificate) has been the subject of an ERISA-Qualifying Underwriting, the
acquisition and holding of the Certificate (other than an ERISA-Restricted
Certificate) are eligible for exemptive relief under Prohibited Transaction
Class Exemption (“PTCE”) 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23,
the statutory exemption for non-fiduciary service providers under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code or some other applicable
administrative or statutory exemption, (e) we have not, nor has anyone acting
on
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the
Act
or require registration pursuant thereto, nor will act, nor has authorized
or
will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware
that the sale to us is being made in reliance on Rule 144A. We are acquiring
the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Act.
Very
truly yours,
[NAME
OF TRANSFEREE]
By:
Authorized
Officer
J-2-2
ANNEX
1 TO EXHIBIT J-2
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
i. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
ii. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or invest on a discretionary basis at least $10,000,000 in securities.
J-2-3
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
___ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
v. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
vi. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
J-2-4
Print
Name of Buyer
By:
Name:
Title:
Date:
X-0-0
XXXXX
0 XX XXXXXXX X-0
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
J-2-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print
Name of Buyer or Adviser
By:
Name:
Title:
IF
AN ADVISER:
Print
Name of Buyer
Date:
J-2-7
EXHIBIT
K
FORM
OF TRANSFEROR CERTIFICATE
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Xxxxxxxxx
Mortgage Securities Trust 2008-1, Mortgage
Loan
Pass-Through Certificates, Series 2008-1, Class
A-R
|
Ladies
and Gentlemen:
In
connection with our proposed transfer of an Ownership Interest in Class A-R
Certificates, we hereby certify that (a) we have no knowledge that the proposed
Transferee is not a Permitted Transferee acquiring an Ownership Interest in
such
Class A-R Certificate for its own account and not in a capacity as trustee,
nominee, or agent for another Person, and (b) we have not undertaken the
proposed transfer in whole or in part to impede the assessment or collection
of
tax.
Very
truly yours,
[_____________________]
By:
______________________________
K-1
EXHIBIT
L
TRANSFER
AFFIDAVIT FOR CLASS A-R CERTIFICATE
PURSUANT
TO SECTION 6.02(e)
XXXXXXXXX
MORTGAGE SECURITIES TRUST 2008-1,
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2008-1, CLASS A-R
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
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)
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The
undersigned, being first duly sworn, deposes and says as follows:
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1.
|
The
undersigned is an officer of ______________________, the proposed
Transferee of a 100% Ownership Interest in the Class A-R Certificate
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement,
(the “Agreement”), dated as of February 1, 2008, relating to the
above-referenced Certificates, among Greenwich Capital Acceptance,
Inc.,
as Depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as Seller, Xxxxx
Fargo
Bank, N.A., as Master Servicer and LaSalle Bank National Association,
as
Trustee and Custodian. Capitalized terms used, but not defined herein,
shall have the meanings ascribed to such terms in the Agreement.
The
Transferee has authorized the undersigned to make this affidavit
on behalf
of the Transferee.
|
|
2.
|
The
Transferee is, as of the date hereof, and will be, as of the date
of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest for its own account and not in a capacity as trustee,
nominee or agent for another party.
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|
3.
|
The
Transferee has been advised of, and understands that (i) a tax will
be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or,
if such
Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the
agent;
and (iii) the Person otherwise liable for the tax shall be relieved
of
liability for the tax if the subsequent Transferee furnished to such
Person an affidavit that such subsequent Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have
actual
knowledge that the affidavit is false. The Transferee has provided
financial statements or other financial information requested by
the
Transferor in connection with the transfer of the Certificate to
permit
the Transferor to assess the financial capability of the Transferee
to pay
such taxes.
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4.
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The
Transferee has been advised of, and understands that a tax may be
imposed
on a “pass-through entity” holding the Certificate if, at any time during
the taxable year of the pass-through entity, a Disqualified Organization
is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
respect
to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization
and
the pass-through entity does not have actual knowledge that such
affidavit
is false. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common trust
fund, a
partnership, trust or estate, and certain cooperatives and, except
as may
be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another
Person.)
|
L-1
|
5.
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The
Transferee has reviewed the provisions of Section 6.02(e) of the
Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding
voiding
the Transfer and mandatory sales. The Transferee expressly agrees
to be
bound by and to abide by the provisions of Section 6.02(e) of the
Agreement and the restrictions noted on the face of the Certificate.
The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the
Transferee contemplated hereby null and
void.
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6.
|
The
Transferee agrees to require a Transfer Affidavit from any Person
to whom
the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and the Transferee will not Transfer its Ownership Interest
or cause any Ownership Interest to be Transferred to any Person that
the
Transferee knows is not a Permitted Transferee. In connection with
any
such Transfer by the Transferee, the Transferee agrees to deliver
to the
Securities Administrator a certificate substantially in the form
set forth
as Exhibit K to the Agreement (a “Transferor
Certificate”).
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7.
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The
Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to
the
Certificate.
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| 8. |
The
Transferee’s taxpayer identification number is .
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|
9.
|
The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of the REMIC provisions and that the
transferor of a noneconomic residual interest will remain liable
for any
taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment
or
collection of tax.
|
L-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
[NAME
OF TRANSFEREE]
By:
Name:
Title:
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act and
deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
NOTARY
PUBLIC
|
My
Commission expires the
day of ,
20 .
|
L-3
EXHIBIT
M
[Reserved]
M-1
EXHIBIT
N
LIST
OF SERVICERS AND SERVICING AGREEMENTS
|
1.
|
(a)
Servicing Agreement, dated as of March 1, 2002, among Xxxxxxxxx Mortgage
Home Loans, Inc. (“Xxxxxxxxx”), as seller and servicer and Xxxxx Fargo, as
master servicer, (“Xxxxx Fargo”) as amended by the Amendment to Servicing
Agreement, dated as of December 1, 2002, and as amended by the Second
Amendment to Servicing Agreement, dated as of January 1, 2006, and
(b) the
Sub-Servicing Acknowledgement Agreement, dated as of March 1, 2002,
by and
between Xxxxxxxxx, as servicer, and Cenlar FSB, as sub-servicer
(“Cenlar”), as amended by the Amendment to Sub-Servicing Acknowledgement
Agreement, dated as of December 1, 2002, by the Second Amendment
to
Subservicing Acknowledgement Agreement, dated as of January 1, 2006,
by
the Third Amendment to Subservicing Acknowledgement, dated as of
August 1,
2007, by the Fourth Amendment to Subservicing Acknowledgment Agreement,
dated as of October 1, 2007, by the Fifth Amendment to Subservicing
Acknowledgement Agreement dated as of February 1, 2008, and by the
Sixth
Amendment to Subservicing Acknowledgement Agreement, dated as of
February
1, 2008, including the related Transfer Notice, dated February 28,
2008,
from Xxxxxxxxx, as seller, to Xxxxxxxxx, as servicer, and Cenlar,
as
sub-servicer.
|
|
2.
|
Amended
and Restated Correspondent Loan Purchase Agreement, dated as of March
25,
2002, between Xxxxxxxxx Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and First
Republic Bank (“First Republic”), including the related Transfer Notice
dated February 28, 2008, from Xxxxxxxxx to First
Republic.
|
|
3.
|
Amended
and Restated Correspondent Loan Purchase Agreement, dated as of March
27,
2002, between Xxxxxxxxx Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and
Colonial Savings, F.A. (“Colonial”), including the related Transfer Notice
dated February 28, 2008, from Xxxxxxxxx to
Colonial.
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4.
|
Correspondent
Loan Purchase Agreement, dated as of April 6, 2006, between Xxxxxxxxx
Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and First Horizon Home Loans, a
division of First Tennessee Bank National Association (“First Horizon”),
including the related Transfer Notice dated February 28, 2008, from
Xxxxxxxxx to First Horizon.
|
N-1
EXHIBIT
O
NOTICE
OF EXERCISE OF OPTIONAL SECURITIES PURCHASE RIGHT
Date__________________
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[TRUSTEE]
|
|
[SECURITIES
ADMINISTRATOR]
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|
[RATING
AGENCIES]
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[MASTER
SERVICER]
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Re:
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Xxxxxxxxx
Mortgage Securities Trust 2008-1
|
Ladies
and Gentlemen:
Pursuant
to the terms of the Pooling and Servicing Agreement (the “Agreement”), dated as
of February 1, 2008, among Greenwich Capital Acceptance, Inc., as depositor,
Xxxxxxxxx Mortgage Home Loans, Inc., Xxxxx Fargo Bank, N.A., as master servicer
and securities administrator, and LaSalle Bank National Association, as trustee,
we hereby give notice of our exercise of the Optional Securities Purchase Right.
We intend to purchase the outstanding Certificates on the Distribution Date
in
______ 20__. [We appoint __________________ as designee to purchase the Class
A-R Certificates.]
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Very
truly yours,
XXXXXXXXX
MORTGAGE, INC.
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By:
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|
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Authorized
Officer
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O-1
EXHIBIT
P
[Reserved]
P-1
EXHIBIT
Q
SERVICING
CRITERIA
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx
Fargo”), in its capacities as Master Servicer and Securities Administrator, and
LaSalle Bank National Association, in its capacity as Custodian, shall address,
at a minimum, the criteria identified below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
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Applicable
Servicing
Criteria
for
Xxxxx
Fargo
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Applicable
Servicing
Criteria
for
LaSalle
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|
|
Reference
|
Criteria
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||
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General
Servicing Considerations
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|||
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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X
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1122(d)(1)(ii)
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If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
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X
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
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||
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1122(d)(1)(iv)
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A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
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X
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Cash
Collection and Administration
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|||
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1122(d)(2)(i)
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Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
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X
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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X
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1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
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X
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|
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1122(d)(2)(iv)
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The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
Q-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
Applicable
Servicing
Criteria
for
LaSalle
|
|
|
Reference
|
Criteria
|
||
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1122(d)(2)(v)
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Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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X
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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X
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1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
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Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
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|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
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1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
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|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
Q-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
Applicable
Servicing
Criteria
for
LaSalle
|
|
|
Reference
|
Criteria
|
||
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
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||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
||
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1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
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||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
Q-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
Applicable
Servicing
Criteria
for
LaSalle
|
|
|
Reference
|
Criteria
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
|
Q-4
EXHIBIT
R
ADDITIONAL
FORM 10-D DISCLOSURE
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
R-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
(in the event of the
Master
Servicer’s termination)
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
R-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
9: Exhibits
|
|
|
Distribution
Date Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
R-3
EXHIBIT
S
ADDITIONAL
FORM 10-K DISCLOSURE
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
S-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to Depositor and Issuing Entity (a)
Sponsor/Seller
as to Sponsor/Seller (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to Depositor and Issuing Entity (a)
Sponsor/Seller
as to Sponsor/Seller (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to Depositor and Issuing Entity
Sponsor/Seller
as to Sponsor/Seller
|
S-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
S-3
EXHIBIT
T
ADDITIONAL
FORM 8-K DISCLOSURE
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
T-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the Distribution Date Statements to the
certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
(if change of the
Securities
Administrator)
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator
|
T-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
T-3
EXHIBIT
U
FORM
OF
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn:
Corporate Trust Services - XXXXXXXXX MORTGAGE TRUST 2008-1-SEC REPORT
PROCESSING
| RE: |
Additional
Form [ ] Disclosure
Required
|
Ladies
and Gentlemen:
In
accordance with Section 3.19(a)(ii) of the Pooling and Servicing Agreement
dated
as of February 1, 2008 by and among the Greenwich Capital Acceptance, Inc.,
as
depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as seller, Xxxxx Fargo Bank,
N.A., as master servicer and securities administrator and LaSalle Bank National
Association, as trustee and custodian, the undersigned, as [ ], hereby notifies
you that certain events have come to our attention that [will][may] need to
be
disclosed on Form [10-D] [10-K] [8-K].
Description
of Additional Form [10-D] [10-K] [8-K] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [
] Disclosure:
Any
inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [
].
[NAME
OF
PARTY]
as
[role]
By:
______________________________________
Name:
Title:
U-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
I
SCHEDULE
II
GROUP
1 MORTGAGE LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
II
SCHEDULE
III
GROUP
2 MORTGAGE LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
III
SCHEDULE
IV
GROUP
3 MORTGAGE LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
IV
SCHEDULE
V
GROUP
4 MORTGAGE LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
V
