FINANCIAL ASSET SECURITIES CORP., Depositor NATIONSTAR MORTGAGE, LLC, Servicer DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee POOLING AND SERVICING AGREEMENT Dated as of February 1, 2007 Soundview Home Loan Trust 2007-NS1 Asset-Backed Certificates,...
FINANCIAL
ASSET SECURITIES CORP.,
Depositor
NATIONSTAR
MORTGAGE, LLC,
Servicer
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of February 1, 2007
___________________________
Asset-Backed
Certificates, Series 2007-NS1
Table
of Contents
|
ARTICLE
I DEFINITIONS
|
|
|
SECTION
1.01
|
Defined
Terms.
|
|
SECTION
1.02
|
Accounting.
|
|
SECTION
1.03
|
Allocation
of Certain Interest Shortfalls.
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
|
|
SECTION
2.01
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02
|
Acceptance
by Trustee.
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by the Originator or the
Seller.
|
|
SECTION
2.04
|
[Reserved].
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of the Servicer.
|
|
SECTION
2.06
|
Representations
and Warranties of the Depositor.
|
|
SECTION
2.07
|
Issuance
of Certificates.
|
|
SECTION
2.08
|
[Reserved].
|
|
SECTION
2.09
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2,
REMIC 3,
REMIC 4, REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF THE MORTGAGE
LOANS
|
|
|
SECTION
3.01
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers;
Subcontractors.
|
|
SECTION
3.03
|
Successor
Sub-Servicers.
|
|
SECTION
3.04
|
Liability
of the Servicer.
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers and the Trustee
or
Certificateholders.
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements.
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10
|
Collection
Account and Distribution Account.
|
|
SECTION
3.11
|
Withdrawals
from the Collection Account and the Distribution
Account.
|
|
SECTION
3.12
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13
|
[Reserved].
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18
|
Servicing
Compensation.
|
|
SECTION
3.19
|
Reports;
Collection Account Statements.
|
|
SECTION
3.20
|
Statement
as to Compliance.
|
|
SECTION
3.21
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22
|
[Reserved].
|
|
SECTION
3.23
|
Access
to Certain Documentation.
|
|
SECTION
3.24
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.25
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.26
|
Obligations
of the Servicer in Respect of Monthly Payments.
|
|
SECTION
3.27
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
3.28
|
Advance
Facility
|
|
SECTION
3.29
|
[Reserved].
|
|
SECTION
3.30
|
Solicitations.
|
|
ARTICLE
IV FLOW OF FUNDS
|
|
|
SECTION
4.01
|
Distributions.
|
|
SECTION
4.02
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.03
|
Statements.
|
|
SECTION
4.04
|
Remittance
Reports; Advances.
|
|
SECTION
4.05
|
Commission
Reporting.
|
|
SECTION
4.06
|
[Reserved].
|
|
SECTION
4.07
|
[Reserved].
|
|
SECTION
4.08
|
Distributions
on the REMIC Regular Interests.
|
|
SECTION
4.09
|
Allocation
of Realized Losses.
|
|
SECTION
4.10
|
Swap
Account.
|
|
SECTION
4.11
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.12
|
Cap
Account.
|
|
SECTION
4.13
|
Posted
Collateral Accounts
|
|
ARTICLE
V THE CERTIFICATES
|
|
|
SECTION
5.01
|
The
Certificates.
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04
|
Persons
Deemed Owners.
|
|
SECTION
5.05
|
Appointment
of Paying Agent.
|
|
ARTICLE
VI THE SERVICER AND THE DEPOSITOR
|
|
|
SECTION
6.01
|
Liability
of the Servicer and the Depositor.
|
|
SECTION
6.02
|
Merger
or Consolidation of, or Assumption of the Obligations of the Servicer
or
the Depositor.
|
|
SECTION
6.03
|
Limitation
on Liability of the Servicer and Others.
|
|
SECTION
6.04
|
Limitation
on Resignation of the Servicer; Assignment of
Servicing.
|
|
SECTION
6.05
|
Successor
Servicer.
|
|
SECTION
6.06
|
Delegation
of Duties.
|
|
SECTION
6.07
|
[Reserved].
|
|
SECTION
6.08
|
Inspection.
|
|
SECTION
6.09
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.10
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.11
|
Removal
of the Credit Risk Manager.
|
|
ARTICLE
VII DEFAULT
|
|
|
SECTION
7.01
|
Servicer
Events of Termination.
|
|
SECTION
7.02
|
Trustee
to Act; Appointment of Successor Servicer.
|
|
SECTION
7.03
|
[Reserved].
|
|
SECTION
7.04
|
Waiver
of Defaults.
|
|
SECTION
7.05
|
Notification
to Certificateholders.
|
|
SECTION
7.06
|
Survivability
of Servicer Liabilities.
|
|
ARTICLE
VIII THE TRUSTEE
|
|
|
SECTION
8.01
|
Duties
of Trustee.
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee.
|
|
SECTION
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
SECTION
8.04
|
Trustee
May Own Certificates.
|
|
SECTION
8.05
|
Trustee
Compensation and Expenses.
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee.
|
|
SECTION
8.07
|
Resignation
or Removal of Trustee.
|
|
SECTION
8.08
|
Successor
Trustee.
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee.
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11
|
Limitation
of Liability.
|
|
SECTION
8.12
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
SECTION
8.13
|
Suits
for Enforcement.
|
|
SECTION
8.14
|
Waiver
of Bond Requirement.
|
|
SECTION
8.15
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
|
ARTICLE
IX REMIC ADMINISTRATION
|
|
|
SECTION
9.01
|
REMIC
Administration.
|
|
SECTION
9.02
|
Prohibited
Transactions and Activities.
|
|
SECTION
9.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
|
ARTICLE
X TERMINATION
|
|
|
SECTION
10.01
|
Termination.
|
|
SECTION
10.02
|
Additional
Termination Requirements.
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
|
|
SECTION
11.01
|
Amendment.
|
|
SECTION
11.02
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04
|
Governing
Law; Jurisdiction.
|
|
SECTION
11.05
|
Notices.
|
|
SECTION
11.06
|
Severability
of Provisions.
|
|
SECTION
11.07
|
Article
and Section References.
|
|
SECTION
11.08
|
Notice
to the Rating Agencies.
|
|
SECTION
11.09
|
Further
Assurances.
|
|
SECTION
11.10
|
Benefits
of Agreement.
|
|
SECTION
11.11
|
Acts
of Certificateholders.
|
|
SECTION
11.12
|
Intention
of the Parties and
Interpretation.
|
|
Exhibits:
|
|
|
Exhibit
A-1
|
Form
of Class A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class A-2 Certificates
|
|
Exhibit
A-3
|
Form
of Class A-3 Certificates
|
|
Exhibit
A-4
|
Form
of Class A-4 Certificates
|
|
Exhibit
A-5
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-10 Certificates
|
|
Exhibit
A-15
|
Form
of Class C Certificates
|
|
Exhibit
A-16
|
Form
of Class P Certificates
|
|
Exhibit
A-17
|
Form
of Class R Certificates
|
|
Exhibit
A-18
|
Form
of Class R-X Certificates
|
|
Exhibit
A-19
|
Form
of Class FL Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Assignment Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
Form
of Cap Allocation Agreement
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Limited Power of Attorney
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Transfer Affidavit for Residual Certificates
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N-1
|
Form
of Certification to be Provided by the Depositor with Form
10-K
|
|
Exhibit
N-2
|
Form
of Certification to be Provided to the Depositor by the
Trustee
|
|
Exhibit
N-3
|
Form
of Certification to be Provided to the Depositor by the
Servicer
|
|
Exhibit
O
|
Form
of Interest Rate Cap Agreement
|
|
Exhibit
P
|
Form
of Basis Risk Cap Agreement
|
|
Exhibit
Q
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
R
|
[Reserved]
|
|
Exhibit
S
|
Servicing
Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Schedule
I
|
Prepayment
Charge Schedule
|
|
Schedule
II
|
Schedule
of PMI Mortgage Loans
|
This
Pooling and Servicing Agreement is dated as of February 1, 2007 (the
“Agreement”), among FINANCIAL ASSET SECURITIES CORP., as depositor (the
“Depositor”), NATIONSTAR MORTGAGE, LLC, as servicer (the “Servicer”) and
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee (the “Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of nineteen classes of
certificates, designated as (i) the Class A-1 Certificates, (ii) the Class
A-2
Certificates, (iii) the Class A-3 Certificates, (iv)
the
Class A-4 Certificates,
(v) the
Class M-1 Certificates, (vi) the Class M-2 Certificates, (vii) the Class M-3
Certificates, (viii) the Class M-4 Certificates, (ix) the Class M-5
Certificates, (x) the Class M-6 Certificates, (xi) the Class M-7 Certificates,
(xii) the Class M-8 Certificates, (xiii) the Class M-9 Certificates, (xiv)
the
Class M-10 Certificates, (xv) the Class C Certificates, (xvi) the Class P
Certificates, (xvii) the Class R Certificates, (xviii) the Class R-X
Certificates and (ix) the Class FL Certificates.
REMIC
1
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Net WAC Rate Carryover Reserve Account, the
Basis Risk Cap Agreement, the Interest Rate Cap Agreement, the Cap Account,
the
Cap Allocation Agreement, any Servicer Prepayment Charge Payment Amounts, the
Swap Account, the Supplemental Interest Trust and the Interest Rate Swap
Agreement) as a REMIC for federal income tax purposes, and such segregated
pool
of assets shall be designated as “REMIC 1.” The Class R-1 Interest shall
represent the sole class of “residual interests” in REMIC 1 for purposes of the
REMIC Provisions (as defined herein). The following table irrevocably sets
forth
the designation, the Uncertificated REMIC 1 Pass-Through Rate, the initial
Uncertificated Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
each of the REMIC 1 Regular Interests (as defined herein). None of the REMIC
1
Regular Interests shall be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
I
|
Variable
(2)
|
$
|
140,871,814.12
|
January
2037
|
|||
|
I-1-A
|
Variable
(2)
|
$
|
9,536,276.25
|
January
2037
|
|||
|
I-1-B
|
Variable
(2)
|
$
|
9,536,276.25
|
January
2037
|
|||
|
I-2-A
|
Variable
(2)
|
$
|
9,192,586.25
|
January
2037
|
|||
|
I-2-B
|
Variable
(2)
|
$
|
9,192,586.25
|
January
2037
|
|||
|
I-3-A
|
Variable
(2)
|
$
|
8,861,457.50
|
January
2037
|
|||
|
I-3-B
|
Variable
(2)
|
$
|
8,861,457.50
|
January
2037
|
|||
|
I-4-A
|
Variable
(2)
|
$
|
8,542,428.75
|
January
2037
|
|||
|
I-4-B
|
Variable
(2)
|
$
|
8,542,428.75
|
January
2037
|
|||
|
I-5-A
|
Variable
(2)
|
$
|
8,235,048.75
|
January
2037
|
|||
|
I-5-B
|
Variable
(2)
|
$
|
8,235,048.75
|
January
2037
|
|||
|
I-6-A
|
Variable
(2)
|
$
|
7,938,890.00
|
January
2037
|
|||
|
I-6-B
|
Variable
(2)
|
$
|
7,938,890.00
|
January
2037
|
|||
|
I-7-A
|
Variable
(2)
|
$
|
7,653,536.25
|
January
2037
|
|||
|
I-7-B
|
Variable
(2)
|
$
|
7,653,536.25
|
January
2037
|
|||
|
I-8-A
|
Variable
(2)
|
$
|
7,378,588.75
|
January
2037
|
|||
|
I-8-B
|
Variable
(2)
|
$
|
7,378,588.75
|
January
2037
|
|||
|
I-9-A
|
Variable
(2)
|
$
|
7,113,663.75
|
January
2037
|
|||
|
I-9-B
|
Variable
(2)
|
$
|
7,113,663.75
|
January
2037
|
|||
|
I-10-A
|
Variable
(2)
|
$
|
7,529,783.75
|
January
2037
|
|||
|
I-10-B
|
Variable
(2)
|
$
|
7,529,783.75
|
January
2037
|
|||
|
I-11-A
|
Variable
(2)
|
$
|
113,533,290.00
|
January
2037
|
|||
|
I-11-B
|
Variable
(2)
|
$
|
113,533,290.00
|
January
2037
|
|||
|
I-12-A
|
Variable
(2)
|
$
|
4,806,010.00
|
January
2037
|
|||
|
I-12-B
|
Variable
(2)
|
$
|
4,806,010.00
|
January
2037
|
|||
|
I-13-A
|
Variable
(2)
|
$
|
3,852,631.25
|
January
2037
|
|||
|
I-13-B
|
Variable
(2)
|
$
|
3,852,631.25
|
January
2037
|
|||
|
I-14-A
|
Variable
(2)
|
$
|
2,244,876.25
|
January
2037
|
|||
|
I-14-B
|
Variable
(2)
|
$
|
2,244,876.25
|
January
2037
|
|||
|
I-15-A
|
Variable
(2)
|
$
|
1,885,688.75
|
January
2037
|
|||
|
I-15-B
|
Variable
(2)
|
$
|
1,885,688.75
|
January
2037
|
|||
|
I-16-A
|
Variable
(2)
|
$
|
1,810,502.50
|
January
2037
|
|||
|
I-16-B
|
Variable
(2)
|
$
|
1,810,502.50
|
January
2037
|
|||
|
I-17-A
|
Variable
(2)
|
$
|
1,748,531.25
|
January
2037
|
|||
|
I-17-B
|
Variable
(2)
|
$
|
1,748,531.25
|
January
2037
|
|||
|
I-18-A
|
Variable
(2)
|
$
|
1,695,448.75
|
January
2037
|
|||
|
I-18-B
|
Variable
(2)
|
$
|
1,695,448.75
|
January
2037
|
|||
|
I-19-A
|
Variable
(2)
|
$
|
1,644,033.75
|
January
2037
|
|||
|
I-19-B
|
Variable
(2)
|
$
|
1,644,033.75
|
January
2037
|
|||
|
I-20-A
|
Variable
(2)
|
$
|
1,594,228.75
|
January
2037
|
|||
|
I-20-B
|
Variable
(2)
|
$
|
1,594,228.75
|
January
2037
|
|||
|
I-21-A
|
Variable
(2)
|
$
|
1,545,981.25
|
January
2037
|
|||
|
I-21-B
|
Variable
(2)
|
$
|
1,545,981.25
|
January
2037
|
|||
|
I-22-A
|
Variable
(2)
|
$
|
1,499,241.25
|
January
2037
|
|||
|
I-22-B
|
Variable
(2)
|
$
|
1,499,241.25
|
January
2037
|
|||
|
I-23-A
|
Variable
(2)
|
$
|
4,064,248.75
|
January
2037
|
|||
|
I-23-B
|
Variable
(2)
|
$
|
4,064,248.75
|
January
2037
|
|||
|
I-24-A
|
Variable
(2)
|
$
|
1,439,726.25
|
January
2037
|
|||
|
I-24-B
|
Variable
(2)
|
$
|
1,439,726.25
|
January
2037
|
|||
|
I-25-A
|
Variable
(2)
|
$
|
1,305,993.75
|
January
2037
|
|||
|
I-25-B
|
Variable
(2)
|
$
|
1,305,993.75
|
January
2037
|
|||
|
I-26-A
|
Variable
(2)
|
$
|
1,204,323.75
|
January
2037
|
|||
|
I-26-B
|
Variable
(2)
|
$
|
1,204,323.75
|
January
2037
|
|||
|
I-27-A
|
Variable
(2)
|
$
|
1,170,178.75
|
January
2037
|
|||
|
I-27-B
|
Variable
(2)
|
$
|
1,170,178.75
|
January
2037
|
|||
|
I-28-A
|
Variable
(2)
|
$
|
1,136,998.75
|
January
2037
|
|||
|
I-28-B
|
Variable
(2)
|
$
|
1,136,998.75
|
January
2037
|
|||
|
I-29-A
|
Variable
(2)
|
$
|
1,104,755.00
|
January
2037
|
|||
|
I-29-B
|
Variable
(2)
|
$
|
1,104,755.00
|
January
2037
|
|||
|
I-30-A
|
Variable
(2)
|
$
|
1,073,418.75
|
January
2037
|
|||
|
I-30-B
|
Variable
(2)
|
$
|
1,073,418.75
|
January
2037
|
|||
|
I-31-A
|
Variable
(2)
|
$
|
1,042,970.00
|
January
2037
|
|||
|
I-31-B
|
Variable
(2)
|
$
|
1,042,970.00
|
January
2037
|
|||
|
I-32-A
|
Variable
(2)
|
$
|
1,013,377.50
|
January
2037
|
|||
|
I-32-B
|
Variable
(2)
|
$
|
1,013,377.50
|
January
2037
|
|||
|
I-33-A
|
Variable
(2)
|
$
|
984,622.50
|
January
2037
|
|||
|
I-33-B
|
Variable
(2)
|
$
|
984,622.50
|
January
2037
|
|||
|
I-34-A
|
Variable
(2)
|
$
|
956,678.75
|
January
2037
|
|||
|
I-34-B
|
Variable
(2)
|
$
|
956,678.75
|
January
2037
|
|||
|
I-35-A
|
Variable
(2)
|
$
|
929,523.75
|
January
2037
|
|||
|
I-35-B
|
Variable
(2)
|
$
|
929,523.75
|
January
2037
|
|||
|
I-36-A
|
Variable
(2)
|
$
|
903,135.00
|
January
2037
|
|||
|
I-36-B
|
Variable
(2)
|
$
|
903,135.00
|
January
2037
|
|||
|
I-37-A
|
Variable
(2)
|
$
|
877,492.50
|
January
2037
|
|||
|
I-37-B
|
Variable
(2)
|
$
|
877,492.50
|
January
2037
|
|||
|
I-38-A
|
Variable
(2)
|
$
|
852,572.50
|
January
2037
|
|||
|
I-38-B
|
Variable
(2)
|
$
|
852,572.50
|
January
2037
|
|||
|
I-39-A
|
Variable
(2)
|
$
|
828,358.75
|
January
2037
|
|||
|
I-39-B
|
Variable
(2)
|
$
|
828,358.75
|
January
2037
|
|||
|
I-40-A
|
Variable
(2)
|
$
|
804,826.25
|
January
2037
|
|||
|
I-40-B
|
Variable
(2)
|
$
|
804,826.25
|
January
2037
|
|||
|
I-41-A
|
Variable
(2)
|
$
|
781,961.25
|
January
2037
|
|||
|
I-41-B
|
Variable
(2)
|
$
|
781,961.25
|
January
2037
|
|||
|
I-42-A
|
Variable
(2)
|
$
|
759,740.00
|
January
2037
|
|||
|
I-42-B
|
Variable
(2)
|
$
|
759,740.00
|
January
2037
|
|||
|
I-43-A
|
Variable
(2)
|
$
|
738,148.75
|
January
2037
|
|||
|
I-43-B
|
Variable
(2)
|
$
|
738,148.75
|
January
2037
|
|||
|
I-44-A
|
Variable
(2)
|
$
|
717,166.25
|
January
2037
|
|||
|
I-44-B
|
Variable
(2)
|
$
|
717,166.25
|
January
2037
|
|||
|
I-45-A
|
Variable
(2)
|
$
|
696,776.25
|
January
2037
|
|||
|
I-45-B
|
Variable
(2)
|
$
|
696,776.25
|
January
2037
|
|||
|
I-46-A
|
Variable
(2)
|
$
|
676,965.00
|
January
2037
|
|||
|
I-46-B
|
Variable
(2)
|
$
|
676,965.00
|
January
2037
|
|||
|
I-47-A
|
Variable
(2)
|
$
|
657,787.50
|
January
2037
|
|||
|
I-47-B
|
Variable
(2)
|
$
|
657,787.50
|
January
2037
|
|||
|
I-48-A
|
Variable
(2)
|
$
|
638,938.75
|
January
2037
|
|||
|
I-48-B
|
Variable
(2)
|
$
|
638,938.75
|
January
2037
|
|||
|
I-49-A
|
Variable
(2)
|
$
|
620,763.75
|
January
2037
|
|||
|
I-49-B
|
Variable
(2)
|
$
|
620,763.75
|
January
2037
|
|||
|
I-50-A
|
Variable
(2)
|
$
|
603,101.25
|
January
2037
|
|||
|
I-50-B
|
Variable
(2)
|
$
|
603,101.25
|
January
2037
|
|||
|
I-51-A
|
Variable
(2)
|
$
|
20,407,328.75
|
January
2037
|
|||
|
I-51-B
|
Variable
(2)
|
$
|
20,407,328.75
|
January
2037
|
|||
|
P
|
Variable
(2)
|
$
|
100.00
|
January
2037
|
|||
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through Rate”
herein.
REMIC
2
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 2.”
The Class R-2 Interest shall evidence the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC 2 Regular Interests (as
defined herein). None of the REMIC 2 Regular Interests shall be
certificated.
|
Designation
|
Uncertificated
REMIC 2
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
LTAA
|
Variable(2)
|
$
|
664,970,198.74
|
January
2037
|
|||
|
LTA1
|
Variable(2)
|
$
|
3,094,240.00
|
January
2037
|
|||
|
LTA2
|
Variable(2)
|
$
|
676,080.00
|
January
2037
|
|||
|
LTA3
|
Variable(2)
|
$
|
1,058,800.00
|
January
2037
|
|||
|
LTA4
|
Variable(2)
|
$
|
439,750.00
|
January
2037
|
|||
|
LTM1
|
Variable(2)
|
$
|
295,170.00
|
January
2037
|
|||
|
LTM2
|
Variable(2)
|
$
|
251,060.00
|
January
2037
|
|||
|
LTM3
|
Variable(2)
|
$
|
128,920.00
|
January
2037
|
|||
|
LTM4
|
Variable(2)
|
$
|
105,180.00
|
January
2037
|
|||
|
LTM5
|
Variable(2)
|
$
|
115,350.00
|
January
2037
|
|||
|
LTM6
|
Variable(2)
|
$
|
74,640.00
|
January
2037
|
|||
|
LTM7
|
Variable(2)
|
$
|
88,210.00
|
January
2037
|
|||
|
LTM8
|
Variable(2)
|
$
|
61,070.00
|
January
2037
|
|||
|
LTM9
|
Variable(2)
|
$
|
81,420.00
|
January
2037
|
|||
|
LTM10
|
Variable(2)
|
$
|
111,960.00
|
January
2037
|
|||
|
LTZZ
|
Variable(2)
|
$
|
6,988,970.38
|
January
2037
|
|||
|
LTP
|
Variable(2)
|
$
|
100.00
|
January
2037
|
|||
|
LTIO
|
Variable(2)
|
(3)
|
January
2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through Rate”
herein.
(3) REMIC
2
Regular Interest LTIO will not have an Uncertificated Principal Balance, but
will accrue interest on its Uncertificated Notional Amount, as defined
herein.
REMIC
3
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 3.”
The Class R-3 Interest shall evidence the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate
and the Original Class Certificate Principal Balance for each Class of
Certificates comprising the interests representing “regular interests” in REMIC
3, and the Class FL Certificates which are not “regular interests” in REMIC 3.
For purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii),
the
“latest possible maturity date” for each Class of Certificates that represents
one or more of the “regular interests” in REMIC 3 created
hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
||||
|
Class
A-1
|
$
|
309,424,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
A-2
|
$
|
67,608,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
A-3
|
$
|
105,880,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
A-4
|
$
|
43,975,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-1
|
$
|
29,517,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-2
|
$
|
25,106,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-3
|
$
|
12,892,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-4
|
$
|
10,518,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-5
|
$
|
11,535,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-6
|
$
|
7,464,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-7
|
$
|
8,821,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-8
|
$
|
6,107,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-9
|
$
|
8,142,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
M-10
|
$
|
11,196,000.00
|
Variable(2)
|
January
2037
|
|||
|
Class
FL
|
$
|
0.00
|
0.00%
|
January
2037
|
|||
|
Class
C Interest
|
$
|
20,356,019.12
|
Variable(3)
|
January
2037
|
|||
|
Class
P Interest
|
$
|
100.00
|
N/A(4)
|
January
2037
|
|||
|
Class
IO Interest
|
(5)
|
(6)
|
January
2037
|
________________
(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2)
Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3)
The
Class
C Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class C Interest outstanding from time to time which
shall equal the aggregate UncertificatedPrincipal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP). The Class C Interest will
not accrue interest on its Certificate Principal Balance.
(4) The
Class
P Interest will not accrue interest.
(5) For
federal income tax purposes, the Class IO Interest will not have a Certificate
Principal Balance, but will have a notional amount equal to the Uncertificated
Notional Amount of REMIC 2 Regular Interest LTIO.
(6) For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC 2 Regular
Interest LTIO.
REMIC
4
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class C Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 4.”
The Class R-4 Interest represents the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate
,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 4 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
||||
|
Class
C Certificates
|
$
|
20,356,019.12
|
Variable(2)
|
January
2037
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
C Certificates will receive 100% of amounts received in respect of the Class
C
Interest.
REMIC
5
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 5.”
The Class R-5 Interest represents the sole class of “residual interests” in
REMIC 5 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 5 created hereunder:
|
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|||
|
Class
P
|
$100.00
|
Variable(2)
|
January
2037
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
6
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class IO Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets shall be designated as “REMIC 6.”
The Class R-6 Interest represents the sole class of “residual interests” in
REMIC 6 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated REMIC 6 Regular Interest, which will be
uncertificated.
|
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|||
|
SWAP
IO
|
N/A
|
Variable(2)
|
January
2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) REMIC
6
Regular Interest SWAP IO shall receive 100% of amounts received in respect
of
the Class IO Interest.
ARTICLE
I
DEFINITIONS
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. Unless otherwise specified, all calculations in
respect of interest on the Floating Rate Certificates shall be made on the
basis
of the actual number of days elapsed and a 360-day year and all calculations
in
respect of interest on the
Class
C
Certificates and all other calculations of interest described herein shall
be
made on the basis of a 360-day year consisting of twelve 30-day months. The
Class P Certificates and the Residual Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue
interest.
“Account”:
Any of the Collection Account, Distribution Account, Cap Account or Swap
Account.
“Accrual
Period”: With respect to the Floating Rate Certificates and each Distribution
Date, the period commencing on the preceding Distribution Date (or in the case
of the first such Accrual Period, commencing on the Closing Date) and ending
on
the day preceding such Distribution Date. With respect to the Class C
Certificates and each Distribution Date, the calendar month prior to the month
of such Distribution Date.
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in respect
thereto. The Adjustable-Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage 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 applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate, (ii) the Trustee Fee Rate, (iii)
the Credit Risk Manager Fee Rate and (iv) the PMI Insurer Fee Rate, if
applicable.
“Adjusted
Net Mortgage 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 applicable Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate, (ii) the Trustee Fee Rate, (iii)
the Credit Risk Manager Fee Rate and (iv) the PMI Insurer Fee Rate, if
applicable.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date,
on which the Mortgage Rate of such Mortgage Loan changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Servicer in
respect of any Distribution Date pursuant to Section 4.04.
“Advance
Facility”: As defined in Section 3.28 hereof.
“Advancing
Person”: As defined in Section 3.28 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“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.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, the sum of (i) any Realized Losses allocated to such
Class of Certificates on such Distribution Date and (ii) the amount of any
Allocated Realized Loss Amount for such Class of Certificates remaining
undistributed from the previous Distribution Date as reduced by an amount equal
to the increase in the related Certificate Principal Balance due to the receipt
of Subsequent Recoveries.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect or record the sale of
the
Mortgage.
“Assignment
Agreement”: The Assignment and Recognition Agreement, dated the Closing Date,
among the Seller, the Originator and the Depositor, pursuant to which certain
of
the Seller’s rights under the Master Agreement were assigned to the Depositor,
substantially in the form attached hereto as Exhibit C.
“Assumed
Final Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Prospectus Supplement.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments received on
the
Mortgage Loans on or prior to the related Determination Date, (b) Net
Liquidation Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent
Recoveries, proceeds from repurchases of and substitutions for such Mortgage
Loans and other unscheduled recoveries of principal and interest in respect
of
the Mortgage Loans received during the related Prepayment Period, (c) the
aggregate of any amounts received in respect of a related REO Property withdrawn
from any REO Account and deposited in the Collection Account for such
Distribution Date, (d) the aggregate of any amounts deposited in the Collection
Account by the Servicer in respect of related Prepayment Interest Shortfalls
for
such Distribution Date, (e) the aggregate of any Advances made by the Servicer
for such Distribution Date in respect of the Mortgage Loans, (f) the aggregate
of any related advances made by the Trustee in respect of the Mortgage Loans
for
such Distribution Date pursuant to Section 7.02, (g) the amount of any
Prepayment Charges collected by the Servicer in connection with the full or
partial prepayment of any of the Mortgage Loans and any Servicer Prepayment
Charge Payment Amount and (h) all income and gain realized from the investment
of funds deposited in the Distribution Account during the Float Period, over
(ii) the sum of (a) amounts reimbursable or payable to the Servicer pursuant
to
Section 3.11(a), amounts reimburseable or payable to the Credit Risk Manager
and
the PMI Provider or amounts reimbursable to the Trustee pursuant to Section
3.11(b), the Swap Provider (including any Net Swap Payment and Swap Termination
Payment owed to the Swap Provider, but excluding any Swap Termination Payment
owed to the Swap Provider resulting from a Swap Provider Trigger Event), (b)
amounts deposited in the Collection Account or the Distribution Account pursuant
to clauses (a) through (h) above, as the case may be, in error, (c) the amount
of any Prepayment Charges collected by the Servicer in connection with the
full
or partial prepayment of any of the Mortgage Loans and any Servicer Prepayment
Charge Payment Amount, (d) any indemnification payments or expense
reimbursements made by the Trust Fund pursuant to Section 6.03 or Section 8.05,
(e)
the
amount of any income and gain realized from the investment of funds deposited
in
the Distribution Account during the Float Period and
(f)
any Net Swap Payment or Swap Termination Payment owed to the Swap Provider
(other than any Swap Termination Payment owed to the Swap Provider resulting
from a Swap Provider Trigger Event).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
Stated Principal Balance of such Mortgage Loan in a single payment at the
maturity of such Mortgage Loan that is substantially greater than the preceding
monthly payment.
“Balloon
Payment”: A payment of the unamortized Stated Principal Balance of a Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Basic
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Principal Remittance Amount for such Distribution Date over
(ii) the Overcollateralization Release Amount, if any, for such Distribution
Date.
“Basis
Risk Cap Agreement”: The basis risk cap agreement, dated the Closing Date,
between the Basis Risk Cap Provider and Trustee, including any schedule,
confirmations, credit support annex or other credit support document relating
thereto, and attached hereto as Exhibit P.
“Basis
Risk Cap Amount”: The Basis Risk Cap Amount for any Class of the Floating Rate
Certificates is equal to (i) the aggregate amount received by the Trust from
the
Basis Risk Cap Agreement multiplied by (ii) a fraction equal to (a) the
Certificate Principal Balance of such Class immediately prior to the applicable
Distribution Date divided by (b) the aggregate Certificate Principal Balance
of
the Floating Rate Certificates immediately prior to the applicable Distribution
Date.
“Basis
Risk Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Trustee and the Basis Risk Cap Provider, which is annexed
to
and forms part of the Basis Risk Cap Agreement.
“Basis
Risk Cap Provider”: The cap provider under the Basis Risk Cap Agreement.
Initially, the Basis Risk Cap Provider shall be The
Royal
Bank of Scotland plc.
“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 5.02 hereof). On the Closing Date, the Floating Rate
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 Delaware, the State of New York, the State
of Texas, the State of California 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.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.12. The Cap Account must be an Eligible Account.
“Cap
Allocation Agreement”: The Cap Allocation Agreement, dated as of the Closing
Date between the Trustee and the Cap Trustee, a form of which is attached hereto
as Exhibit G.
“Cap
Trustee”: Deutsche Bank National Trust Company, a national banking association,
not in its individual capacity but solely in its capacity as Cap Trustee, and
any successor thereto.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“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 and,
solely for the purposes of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor or the Servicer or any
Affiliate thereof shall be deemed not to be outstanding and the Voting Rights
to
which it is entitled shall not be taken into account in determining whether
the
requisite percentage of Voting Rights necessary to effect any such consent
has
been obtained, except as otherwise provided in Section 11.01. The Trustee may
conclusively rely upon a certificate of the Depositor or the Servicer in
determining whether a Certificate is held by an Affiliate thereof. All
references herein to “Holders” or “Certificateholders” shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee shall be required to recognize
as a
“Holder” or “Certificateholder” only the Person in whose name a Certificate is
registered in the Certificate Register.
“Certificate
Margin”: With respect to each Class of Floating Rate Certificates and for
purposes of the Marker Rate and the Maximum Uncertificated Accrued Interest
Deferral Amount, the specified REMIC 2 Regular Interest, as
follows:
|
REMIC
2 Regular
|
Certificate
Margin
|
|||||
|
Class
|
Interest
|
(1)
(%)
|
(2)
(%)
|
|||
|
A-1
|
LTA1
|
0.120%
|
0.240%
|
|||
|
A-2
|
LTA2
|
0.150%
|
0.300%
|
|||
|
A-3
|
LTA3
|
0.200%
|
0.400%
|
|||
|
A-4
|
LTA4
|
0.300%
|
0.600%
|
|||
|
M-1
|
LTM1
|
0.350%
|
0.525%
|
|||
|
M-2
|
LTM2
|
0.450%
|
0.675%
|
|||
|
M-3
|
LTM3
|
0.600%
|
0.900%
|
|||
|
M-4
|
LTM4
|
0.900%
|
1.350%
|
|||
|
M-5
|
LTM5
|
1.000%
|
1.500%
|
|||
|
M-6
|
LTM6
|
1.300%
|
1.950%
|
|||
|
M-7
|
LTM7
|
2.000%
|
3.000%
|
|||
|
M-8
|
LTM8
|
2.000%
|
3.000%
|
|||
|
M-9
|
LTM9
|
2.000%
|
3.000%
|
|||
|
M-10
|
LTM10
|
2.000%
|
3.000%
|
|||
__________
(1) For
the
Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
other Accrual Period.
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C Certificates) immediately prior to any Distribution Date,
will
be equal to the Initial Certificate Principal Balance thereof plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, reduced by the sum of all amounts actually
distributed in respect of principal of such Class and, in the case of a
Mezzanine Certificate, Realized Losses allocated thereto on all prior
Distribution Dates. With respect to the Class C Certificates as of any date
of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Floating Rate Certificates
and the Class P Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”:
As defined in Section 4.05(b)(iii).
“Class”:
Collectively, Certificates which 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
A
Certificate”: Any one of the Class A-1 Certificates, the Class A-2 Certificates,
the Class A-3 Certificates or the Class A-4 Certificates.
“Class
A-1 Certificate”: Any one of the Class A-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-1, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
A-2 Certificate”: Any one of the Class A-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-2, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
A-3 Certificate”: Any one of the Class A-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-3, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
A-4 Certificate”: Any one of the Class A-4 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-4, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
C
Certificates”: Any one of the Class C Certificates executed, authenticated and
delivered by the Trustee, substantially in the form annexed hereto as Exhibit
A-15, representing (i) a Regular Interest in REMIC 4, (ii) the obligation to
pay
Net WAC Rate Carryover Amounts and Swap Termination Payments and (iii) the
right
to receive the Class IO Distribution Amount.
“Class
C
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class C Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
FL
Certificate”: Any one of the Class FL Certificates executed, authenticated and
delivered by the Trustee, substantially in the form annexed hereto as Exhibit
A-19, representing the right to distributions as set forth herein.
“Class
IO
Distribution Amount”: As defined in Section 4.10 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Trustee on such Distribution Date in excess of the
amount payable on the Class IO Interest on such Distribution Date, all as
further provided in Section 4.10 hereof.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund evidencing a Regular
Interest in REMIC 3.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-5, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-1 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date) and (ii) the Certificate Principal Balance of the
Class M-1 Certificates immediately prior to such Distribution Date over (y)
the
lesser of (A) the product of (i) 64.00% and (ii) the Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-6, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-2 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 71.40%
and
(ii) the Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-7, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-3 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 75.20% and (ii) the Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the Overcollateralization
Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-8, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 78.30% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-9, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 81.70% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-10, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date), (ii) the Certificate Principal Balance of
the
Class M-1 Certificates (after taking into account the distribution of the Class
M-1 Principal Distribution Amount on such Distribution Date), (iii) the
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the distribution of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 83.90% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-11, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 86.50% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-12, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (ix) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 88.30% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-13, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: The excess of (x) the sum of (i) the
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (x) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 90.70% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-14, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-10 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (xi) the Certificate
Principal Balance of the Class M-10 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 94.00% and
(ii)
the Stated Principal Balance of the Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
P
Certificate”: Any one of the Class P Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-16, representing a Regular Interest in REMIC
5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trustee, and authenticated
and delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A-17 and evidencing the ownership of the Class R-1 Interest,
the Class R-2 Interest and the Class R-3 Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-18 and evidencing the ownership of the Class
R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: March 8, 2007.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The segregated account or accounts created and maintained by the
Servicer pursuant to Section 3.10(a), which shall be titled “Nationstar
Mortgage, LLC, as Servicer for Deutsche Bank National Trust Company as Trustee,
in trust for the registered Holders of Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates, Series 2007-NS1,” which must be an Eligible
Account.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to the Servicer and any Principal Prepayment, the amount
in respect of Prepayment Interest Shortfalls required to be paid by the Servicer
pursuant to Section 3.25 from its own funds without right of reimbursement.
“Corporate
Trust Office”: 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 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, or at such other address as the Trustee may designate from time
to
time by notice to the Certificateholders, the Depositor, the Servicer and the
Originator.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
|
LTA1
|
Class
A-1
|
|
|
LTA2
|
Class
A-2
|
|
|
LTA3
|
Class
A-3
|
|
|
LTA4
|
Class
A-4
|
|
|
LTM1
|
Class
M-1
|
|
|
LTM2
|
Class
M-2
|
|
|
LTM3
|
Class
M-3
|
|
|
LTM4
|
Class
M-4
|
|
|
LTM5
|
Class
M-5
|
|
|
LTM6
|
Class
M-6
|
|
|
LTM7
|
Class
M-7
|
|
|
LTM8
|
Class
M-8
|
|
|
LTM9
|
Class
M-9
|
|
|
LTM10
|
Class
M-10
|
|
|
LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Certificate Principal
Balance of the Subordinate Certificates, and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans, calculated prior
to
taking into account payments of principal on the Mortgage Loans and distribution
of the Principal Distribution Amount to the Holders of the Certificates then
entitled to distributions of principal on such Distribution Date.
“Credit
Risk Management Agreement”: The agreement between the Credit Risk Manager and
the Servicer regarding the loss mitigation and advisory services to be provided
by the Credit Risk Manager.
“Credit
Risk Manager”: Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and
its successors and assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any of the powers and duties of the Credit Risk
Manager under the Credit Risk Management Agreement and any other agreement
pursuant to which the Credit Risk Manager is to perform any duties with respect
to the Mortgage Loans, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Manager Fee Rate (without regard to the words “per annum”)
and (ii) the aggregate Stated Principal Balance of the Mortgage Loans and any
related REO Properties as of the first day of the related Due
Period.
“Credit
Risk Manager Fee Rate”: 0.0125% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
“Custodian”:
The Bank of New York Trust Company, N.A., as custodian of the Mortgage Files,
or
any successor thereto.
“Cut-off
Date”: February 1, 2007.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans Delinquent 60 days
or
more (including Mortgage Loans that are REO Properties, in foreclosure or in
bankruptcy and that are also Delinquent 60 days or more) by (y) the aggregate
Stated Principal Balance of the Mortgage Loans, in each case, as of the last
day
of the previous calendar month, except in the case of liquidated Mortgage Loans,
which shall be as of the last day of the related Prepayment Period.
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on the
next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan is
60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made by
the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“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”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by any REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer on behalf
of
the Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an “electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof, if all of its activities are subject to tax
and a majority of its board of directors is not selected by a governmental
unit.
The term “United States”, “state” and “international organizations” shall have
the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be titled “Distribution Account,
Deutsche Bank National Trust Company as Trustee, in trust for the registered
Certificateholders of Soundview Home Loan Trust 2007-NS1, Asset-Backed
Certificates, Series 2007-NS1” and which must be an Eligible
Account.
“Distribution
Date”: The 25th
day of
any calendar month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in March 2007.
“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 (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment 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 A-1+ by S&P,
F-1 by Fitch and P-1 by Xxxxx’x (or comparable ratings if S&P, Fitch and
Xxxxx’x are not the Rating Agencies) at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured
by
the FDIC up to the insured amount, (iii) a trust 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 (iv) an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trustee.
Eligible Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“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.
“Estimated
Swap Termination Payment”: As defined in the Interest Rate Swap
Agreement.
“Excess
Overcollateralized Amount”: With respect to the Floating Rate Certificates and
any Distribution Date, the excess, if any, of the sum of (i) the
Overcollateralized Amount for such Distribution Date, assuming that 100% of
the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date and (ii) any amounts received under the Interest Rate Swap
Agreement and the Interest Rate Cap Agreement for such purpose over (iii) the
Overcollateralization Target Amount for such Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount distributable on the
Class C Certificates on such Distribution Date as reduced by Realized Losses
allocated thereto with respect to such Distribution Date pursuant to Section
4.08 and (y) the Overcollateralization Deficiency Amount for such Distribution
Date.
“Xxxxxx
Mae”: Federal National Mortgage Association or any successor
thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the
Originator, the Seller or the Servicer pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 10.01), a determination made by the Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects
to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fixed-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides for a fixed Mortgage
Rate payable with respect thereto. The Fixed-Rate Mortgage Loans are identified
as such on the Mortgage Loan Schedule.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Float
Period”: With
respect to any Distribution Date and amounts in the Distribution
Account, the period commencing on the Servicer Remittance Date and ending
on the Business Day immediately preceding such Distribution Date.
“Floating
Rate Certificates”: The Class A Certificates and the Mezzanine
Certificates.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) the related Notional Amount (as defined
in
the Interest Rate Swap Agreement), (iii) 250 and (iv) a fraction, the numerator
of which is the actual number of days elapsed from and including the previous
Floating Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement) to but excluding the current Floating Rate Payer Payment (or, for
the
first Floating Rate Payer Payment Date, the actual number of days elapsed from
the Closing Date to but excluding the first Floating Rate Payer Payment Date),
and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.05(b)(ii).
“Formula
Rate”: For any Distribution Date and any Class of Floating Rate Certificates,
the lesser of (a) the sum of (i) LIBOR plus (ii) the related Certificate Margin
and (b) the Maximum Cap Rate.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
the highest priority for payments pursuant to Section 4.01, in the following
order of decreasing priority: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10
Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or the Class R Certificates (or
any
portion thereof).
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor or the Servicer and their respective
Affiliates, (b) does not have any direct financial interest in or any material
indirect financial interest in the Depositor or the Servicer or any Affiliate
thereof, and (c) is not connected with the Depositor or the Servicer or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor or the Servicer
or any Affiliate thereof merely because such Person is the beneficial owner
of
1% or less of any class of securities issued by the Depositor or the Servicer
or
any Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Servicer) that would be an
“independent contractor” with respect to any of the REMICs created hereunder
within the meaning of Section 856(d)(3) of the Code if such REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as each such
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and such REMIC is at arm’s length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Servicer) if the Trustee has received an Opinion
of
Counsel to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that
is
otherwise herein contemplated to be taken by an Independent Contractor will
not
cause such REO Property to cease to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause
any
income realized in respect of such REO Property to fail to qualify as Rents
from
Real Property.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
covering a Mortgage Loan including the PMI Policy,, to the extent such proceeds
are received by the Servicer and are not to be applied to the restoration of
the
related Mortgaged Property or released to the Mortgagor in accordance with
the
procedures that the Servicer would follow in servicing mortgage loans held
for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
“Interest
Determination Date”: With respect to the Floating Rate Certificates and each
Accrual Period, the second LIBOR Business Day preceding the commencement of
such
Accrual Period.
“Interest
Rate Cap Agreement”: The interest rate cap agreement, dated the Closing Date
between the Cap Trustee and the Interest Rate Cap Provider, including any
schedule, confirmations, credit support annex or other credit support document
relating thereto, and attached hereto as Exhibit O.
“Interest
Rate Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Cap Trustee and the Interest Rate Cap Provider, which is
annexed to and forms part of the Interest Rate Cap Agreement.
“Interest
Rate Cap Provider”: The cap provider under the Interest Rate Cap Agreement.
Initially, the Interest Rate Cap Provider shall be The Royal Bank of Scotland
plc.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated the Closing Date,
between the Supplemental Interest Trust Trustee and the Swap Provider, including
any schedule, confirmations, credit support annex or other credit support
document relating thereto, and attached hereto as Exhibit Q.
“Interest
Remittance Amount”: With respect to any Distribution Date, that portion of
Available Funds for such Distribution Date attributable to interest received
or
advanced with respect to the Mortgage Loans and all income and gain realized
from the investment of funds deposited in the Distribution Account during the
Float Period.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received by the
Servicer subsequent to the Determination Date immediately following any related
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent on
a
contractual basis for such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trustee on
the
related Interest Determination Date on the basis of the London interbank offered
rate for one-month United States dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750, the
rate
for such Interest Determination Date will be determined on the basis of the
offered rates of the Reference Banks for one-month United States dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
The Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. On such Interest Determination Date,
LIBOR for the related Accrual Period will be established by the Trustee as
follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
“LIBOR
Business Day”: Any day on which banks in London, England and The City of New
York are open and conducting transactions in foreign currency and
exchange.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
specified herein, as of the end of the related Prepayment Period, that all
Liquidation Proceeds which it expects to recover with respect to the liquidation
of the 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
by Section 2.03, Section 3.16(c) or Section 10.01. 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 3.24 or
Section 10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise or (iii) the repurchase, substitution or sale of a Mortgage Loan
or an
REO Property pursuant to or as contemplated by Section 2.03, Section 3.16(c),
Section 3.24 or Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related Mortgaged
Property.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has not
been
replaced, an affidavit from the Originator 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.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for each REMIC 2 Regular Interest (other than REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTIO and REMIC 2 Regular
Interest LTP), with the rate on each such REMIC 2 Regular Interest (other than
REMIC 2 Regular Interest LTZZ) subject to a cap equal to the Pass-Through Rate
for the Corresponding Certificate for the purpose of this calculation; and
with
the rate on REMIC 2 Regular Interest LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest (other than REMIC 2
Regular Interest LTZZ) shall be multiplied by a fraction, the numerator of
which
is the actual number of days in the related Accrual Period and the denominator
of which is 30.
“Master
Agreement”: The Seller's Master Mortgage Loan Purchase and Servicing Agreement,
dated January 1, 2007, among Auburn Funding LLC, Nationstar Mortgage LLC and
the
Seller.
“Maximum
Cap Rate”: For any Distribution Date with respect to the Floating Rate
Certificates, a per annum rate equal to the product of (i) the sum of (x) the
weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans (weighted based on the Stated Principal Balances of the Mortgage Loans
as
of the first
day
of the related Due Period or, in the case of the first Distribution Date, the
Cut-off Date, adjusted, except in the case of the first Distribution Date,
to
reflect unscheduled principal payments made thereafter during
the Prepayment Period that includes such first day of the related Due Period)
minus the Swap Expense Fee Rate and (y) an amount, expressed as a percentage,
equal to a fraction, the numerator of which is equal to any Net Swap Payment
made by the Swap Provider and the denominator of which is equal to the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Due Period (adjusted to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day),
multiplied by 12 and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related Accrual
Period.
“Maximum
Mortgage Rate”: With respect to each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the maximum Mortgage Rate thereunder.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (b) the sum of the Uncertificated
Accrued Interest on REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest
LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2
Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest
LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2
Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest
LTM8, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest LTM10, with
the
rate on each such REMIC 2 Regular Interest subject to a cap equal to the
Pass-Through Rate for the related Corresponding Certificate for the purpose
of
this calculation; provided, however, that for this purpose, calculations of
the
Uncertificated REMIC 2 Pass-Through Rate and the related caps with respect
to
each such REMIC 2 Regular Interest (other than REMIC 2 Regular Interest LTZZ)
shall be multiplied by a fraction, the numerator of which is the actual number
of days elapsed in the related Accrual Period and the denominator of which
is
30.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9 Certificate
or Class M-10 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any applicable Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof.
“Monthly
Interest Distributable Amount”: With respect to any Class of Floating Rate
Certificates and the Class C Certificates and any Distribution Date, the amount
of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Certificate Principal Balance (or Notional Amount
in
the case of the Class C Certificates) of such Class immediately prior to such
Distribution Date, in each case, reduced by any Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such Certificate
based on its respective entitlements to interest irrespective of any Net
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan, (ii) any modifications to a Mortgage Loan
pursuant to Section 3.07 and (iii) 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 Servicer pursuant
to
clause (ii) of Section 3.07; and (c) on the assumption that all other amounts,
if any, due under such Mortgage Loan are paid when due.
“Moody’s”:
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 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 transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) 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 Schedule”: As of any date, the list of Mortgage Loans included in REMIC 1
on such date, separately identifying the Mortgage Loans, attached hereto as
Exhibit D. The Mortgage Loan Schedule shall be prepared by the Seller and shall
set forth the following information with respect to each Mortgage Loan, as
applicable:
| (1) |
the
Mortgage Loan identifying number;
|
| (2) |
[reserved];
|
| (3) |
the
state and zip code of the Mortgaged
Property;
|
| (4) |
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
| (5) |
the
type of Residential Dwelling constituting the Mortgaged
Property;
|
| (6) |
the
original months to maturity;
|
| (7) |
the
stated remaining months to maturity from the Cut-off Date based on
the
original amortization schedule;
|
| (8) |
the
Loan-to-Value Ratio at origination;
|
| (9) |
the
Mortgage Rate in effect immediately following the Cut-off
Date;
|
| (10) |
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
| (11) |
the
stated maturity date;
|
| (12) |
the
amount of the Monthly Payment at
origination;
|
| (13) |
the
amount of the Monthly Payment due on the first Due Date after the
Cut-off
Date;
|
| (14) |
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
| (15) |
the
original principal amount of the Mortgage
Loan;
|
| (16) |
the
Stated Principal Balance of the Mortgage Loan as of the Close of
Business
on the Cut-off Date;
|
| (17) |
a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
| (18) |
the
Mortgage Rate at origination;
|
| (19) |
a
code indicating the documentation program (i.e., full documentation,
limited income verification, no income verification, alternative
income
verification);
|
| (20) |
the
risk grade;
|
| (21) |
the
Value of the Mortgaged Property;
|
| (22) |
the
sale price of the Mortgaged Property, if
applicable;
|
| (23) |
the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
|
| (24) |
the
type and term of the related Prepayment
Charge;
|
| (25) |
with
respect to any Adjustable-Rate Mortgage Loan, the rounding code,
the
Minimum Mortgage Rate, the Maximum Mortgage Rate, the Gross Margin,
the
next Adjustment Date and the Periodic Rate
Cap;
|
| (26) |
the
program code;
|
| (27) |
the
lien priority; and
|
| (28) |
the
MIN, if applicable.
|
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans 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
Mortgage Rate of the Mortgage Loans and (4) the weighted average remaining
term
to maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from time to time by the Servicer in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan, Cut-off
Date
shall refer to the Cut-off Date for such Mortgage Loan, determined in accordance
with the definition of Cut-off Date herein. On the Closing Date, the Depositor
will deliver to the Servicer, as of the Cut-off Date, an electronic copy of
the
Mortgage Loan Schedule.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Fixed-Rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable-Rate Mortgage Loan,
the
annual rate at which interest accrues on such Mortgage Loan from time to time
in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of a fee simple estate in a parcel of real property
improved by a Residential Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“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 and Insurance Proceeds net of Advances, Servicing Advances,
Servicing Fees and any other accrued and unpaid servicing fees or ancillary
income received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Floating Rate Certificates, (B) the Unpaid Interest Shortfall Amounts for the
Class A Certificates and (C) the Principal Remittance Amount.
“Net
Mortgage 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 Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: With respect to the Floating Rate Certificates and any Distribution Date,
a per annum rate equal to the product of (x) the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans (weighted based on the Stated
Principal Balances of the Mortgage Loans as of the first day of the related
Due
Period or, in the case of the first Distribution Date, the Cut-off Date,
adjusted, except in the case of the first Distribution Date, to reflect
unscheduled principal payments made thereafter during the Prepayment Period
that
includes such first day of the related Due Period) minus the Swap Expense Fee
Rate and (y) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Accrual Period. For
federal income tax purposes, the equivalent of the foregoing shall be expressed
as a per annum rate equal to the weighted average of the Uncertificated REMIC
2
Pass-Through Rates on each REMIC 2 Regular Interest (other than REMIC 2 Regular
Interests LTIO), weighted on the basis of the Uncertificated Principal Balance
of each such REMIC 2 Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect to any Class of Floating Rate Certificates
and any Distribution Date, the sum of (A) the positive excess of (i) the amount
of interest accrued on such Class of Certificates on such Distribution Date
calculated at the related Formula Rate over (ii) the amount of interest accrued
on such Class of Certificates at the Net WAC Rate for such Distribution Date
and
(B) the Net WAC Rate Carryover Amount for the previous Distribution Date not
previously paid, together with interest thereon at a rate equal to the related
Formula Rate for the most recently ended Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.02.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“Nonrecoverable
Advance”: Any Advance or Servicing Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer will not be ultimately recoverable from Late
Collections, Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
on such Mortgage Loan or REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class C
Interest, the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than the REMIC 2 Regular Interest LTP).
“Offered
Certificates”: The Class A Certificates and the Mezzanine Certificates (other
than the Class M-10 Certificates) offered to the public pursuant to the
Prospectus Supplement.
“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 Servicer, the Originator, the Seller or the
Depositor, as applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor, the Seller or the Servicer, acceptable
to
the Trustee, except that any opinion of counsel relating to (a) the
qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Terminator may opt
to terminate the Trust Fund pursuant to Section 10.01.
“Original
Class Certificate Principal Balance”:
With
respect to the Floating Rate Certificates, the Class C Certificates, the Class
C
Interest, the Class IO Interest, REMIC 6 Regular Interest SWAP IO, the Class
P
Certificates and the Class P Interest, the corresponding amounts set forth
opposite such Class above in the Preliminary Statement.
“Originator”:
Nationstar Mortgage, LLC, a limited liability company, or its successor in
interest.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal distribution on such Distribution
Date).
“Overcollateralization
Floor”: $3,392,707.
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With
respect to any Distribution Date, (i) prior to the Stepdown Date, an amount
equal to 3.00% of the aggregate Cut-off Date Principal Balance of the Mortgage
Loans, (ii) on or after the Stepdown Date provided a Trigger Event is not in
effect, the greater of (A) 6.00% of the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the
Overcollateralization Floor and
(iii)
on or after the Stepdown Date if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
Notwithstanding the foregoing, on and after any Distribution Date following
the
reduction of the aggregate Certificate Principal Balance of the Floating Rate
Certificates to zero, the Overcollateralization Target Amount shall be
zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the aggregate Certificate Principal Balance of the Floating Rate
Certificates and the Class P Certificates as of such Distribution Date after
giving effect to distributions to be made on such Distribution
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 the Floating
Rate Certificates and any Distribution Date, the lesser of (a) the related
Formula Rate and (b) the Net WAC Rate for such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Balance of each REMIC 2 Regular Interest listed
in clause (y) at a rate equal to the related Uncertificated REMIC 2 Pass-Through
Rate minus the Marker Rate and the denominator of which is (y) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interests XXXX, XXX0, XXX0,
XXX0, XXX0, XXX0, LTM2, LTM3, LTM4, LTM5, LTM6, LTM7, LTM8, LTM9,
LTM10
and LTMZZ.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate.
The
Class
IO Interest shall not have a Pass-Through Rate, but interest for such Regular
Interest and each Distribution Date shall be an amount equal to 100% of the
amounts distributable to REMIC 2 Regular Interest LTIO.
The
REMIC
6 Regular Interest SWAP-IO Interest shall not have a Pass-Through Rate, but
interest for such Regular Interest and each Distribution Date shall be an amount
equal to 100% of the amounts distributable to the Class IO Interest for such
Distribution Date.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“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 represented by such Certificate and the
denominator of which is the Original Class Certificate Principal Balance of
the
related Class. With respect to a Residual Certificate, the portion of the Class
evidenced thereby, expressed as a percentage, as stated on the face of such
Certificate; provided, however, that the sum of all such percentages for each
such Class totals 100%.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
“Permitted
Investments”: 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 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 its agent 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, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available ratings of Moody’s and the highest available rating category of Fitch
and S&P and provided that each such investment has an original maturity of
no more than 365 days; and provided further that, if the only Rating Agency
is
S&P and if the depository or trust company is a principal subsidiary of a
bank holding company and the debt obligations of such subsidiary are not
separately rated, the applicable rating shall be that of the bank holding
company; and, provided further that, if the original maturity of such short-
term obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such institution
shall be A-1+ in the case of S&P if S&P is the Rating Agency; and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated F-1+ or higher by Fitch, P-1 by
Moody’s and rated A-1+ or higher by S&P, provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market prices plus
accrued interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee in exchange for such collateral
and
(C) be delivered to the Trustee or, if the Trustee is supplying the collateral,
an agent for the Trustee, in such a manner as to accomplish perfection of a
security interest in the collateral by possession of certificated
securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by S&P (and if rated by any other Rating Agency, also by
such other Rating Agency) in its highest long-term unsecured rating category
at
the time of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds, including those money market funds managed or advised by
the
Trustee or its Affiliates, that have been rated “AAA” by Fitch (if rated by
Fitch), “Aaa” by Moody’s and “AAAm” or “AAAm-G” by S&P; and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial rating
of
the Class A Certificates;
provided,
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, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“PMI
Insurer”: Mortgage Guaranty Insurance Corporation, a Wisconsin stock insurance
corporation, or its successor in interest.
“PMI
Insurer Fee”: The amount payable to the PMI Insurer on each Distribution Date
pursuant to Section 4.01, which amount shall equal one-twelfth of the product
of
(i) the PMI Insurer Fee Rate, multiplied by (ii) the aggregate Stated Principal
Balance of the PMI Mortgage Loans and any related REO Properties as of the
first
day of the related Due Period (after giving effect to scheduled payments of
principal due during the Due Period relating to the previous Distribution Date,
to the extent received or advanced) plus any applicable premium taxes on related
PMI Mortgage Loans located in West Virginia and Kentucky.
“PMI
Insurer Fee Rate”: 1.890%
per
annum with respect to any PMI Mortgage Loans.
“PMI
Mortgage Loans”: The list of Mortgage Loans insured by the PMI Insurer attached
hereto as Schedule II.
“PMI
Policy”: The primary mortgage insurance policy with respect to the related PMI
Mortgage Loans, including all endorsements thereto dated the Closing Date,
issued by the PMI Insurer and the Terms Letter, dated March 8, 2007, among
Mortgage Guaranty Insurance Corporation, the Servicer and the
Trustee.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial Principal Prepayment of such Mortgage
Loan
in accordance with the terms thereof (other than any Servicer Prepayment Charge
Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment during the related
Prepayment Period, an amount equal to one-month’s interest at the applicable Net
Mortgage Rate less any payments made by the Mortgagor on the amount of such
Principal Prepayment for the number of days commencing on the date such
Principal Prepayment is received and ending on the last day of the calendar
month preceding the month in which such Distribution Date occurs.
“Prepayment
Period”: With respect to any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
“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 Cut-off Date Principal Balance of any such Mortgage Loan. 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 minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Distribution Amount”: With respect to any Distribution Date, the sum of (i) the
Basic Principal Distribution Amount for such Distribution Date and (ii) the
Extra Principal Distribution Amount for such Distribution Date.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which 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.
“Principal
Remittance Amount”: With respect to any Distribution Date, that portion of
Available Funds equal to the sum of (i) each scheduled payment of principal
collected or advanced by the Servicer that were due during the related Due
Period, (ii) the principal portion of all partial and full Principal Prepayments
applied by the Servicer during the related Prepayment Period, (iii) the
principal portion of all related Net Liquidation Proceeds, Insurance Proceeds
and Subsequent Recoveries received during the related Prepayment Period with
respect to the Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Mortgage Loan, deposited to the
Collection Account during the related Prepayment Period, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the related Prepayment Period and (vi) on the Distribution Date
on which the Trust Fund is to be terminated pursuant to Section 10.01, that
portion of the Termination Price, in respect of principal.
“Prospectus
Supplement”: That certain Prospectus Supplement dated March 2, 2007 relating to
the public offering of the Offered Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by the
Seller or the Servicer pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 10.01, and as confirmed by an Officers’ Certificate from the
party purchasing the Mortgage Loan to the Trustee, an amount equal to the sum
of
(i) 100% of the Stated Principal Balance thereof as of the date of purchase
(or
such other price as provided in Section 10.01), (ii) in the case of (x) a
Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance
by
the Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01, 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 Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was
last
covered by a payment by the Mortgagor or an advance by the Servicer through
the
end of the calendar month immediately preceding the calendar month in which
such
REO Property was acquired, 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 pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.24 and (v) in the case of a Mortgage
Loan required to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer or the Trustee in respect of the
breach or defect giving rise to the purchase obligation, including any costs
and
damages incurred by the Trust Fund in connection with any violation with respect
to such loan of any predatory or abusive lending law. With respect to the
Originator and any Mortgage Loan or REO Property to be purchased pursuant to
or
as contemplated by Section 2.03 or 10.01, and as confirmed by a certificate
of
an Officers’ Certificate of the Originator to the Trustee, an amount equal to
the amount set forth pursuant to the terms of the Master Agreement.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx.
“Qualified
Substitute Mortgage Loan”: With respect to the Seller, 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 Stated
Principal Balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Stated 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 5%
less
than, the outstanding Stated Principal Balance of the Deleted Mortgage Loan
as
of the Due Date in the calendar month during which the substitution occurs,
(ii)
have a Mortgage Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Gross
Margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan,
(vi) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) be current as of the date of substitution, (ix)
have a Loan-to-Value Ratio as of the date of substitution equal to or lower
than
the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (x) have
a
risk grading determined by the Originator at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xi) have been underwritten or
reunderwritten by the Originator in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xii) be a first lien
mortgage loan if the Deleted Mortgage Loan is a first lien mortgage loan and
(xiii) conform to each representation and warranty set forth in Section 3.01
of
the Mortgage Loan Purchase Agreement or assigned to the Depositor pursuant
to
the Assignment Agreement applicable to the Deleted Mortgage Loan and (xiv)
be
covered by the PMI Policy if the Deleted Mortgage Loan was covered by the PMI
Policy. 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 Stated Principal Balance, the Mortgage
Rates described in clause (ii) hereof shall be satisfied for each such mortgage
loan, the risk gradings described in clause (x) hereof shall be satisfied as
to
each such mortgage loan, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity (provided
that no such mortgage loan may have a remaining term to maturity longer than
the
Deleted Mortgage Loan), the Loan-to-Value Ratios described in clause (ix) 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 (xii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be. With respect
to the Originator, a mortgage loan substituted for a Deleted Mortgage Loan
pursuant to the terms of the Master Agreement which must, on the date of such
substitution conform to the terms set forth in the Master
Agreement.
“Rating
Agency or Rating Agencies”: Xxxxx’x and S&P, or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall be
given
to the Trustee.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to (i) the Floating Rate Certificates, the Close of Business
on the Business Day immediately preceding the related Distribution Date;
provided, however, that following the date on which Definitive Certificates
for
any of the Floating Rate Certificates are available pursuant to Section 5.02,
the Record Date for such Certificates that are Definitive Certificates shall
be
the last Business Day of the calendar month preceding the month in which the
related Distribution Date occurs and (ii) the Class P Certificates, the Class
C
Certificates and the Residual Certificates, the Close of Business on the last
Business Day of the calendar month preceding the month in which the related
Distribution Date occurs.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Originator, the Servicer or any Affiliate thereof and (iii) which have
been
designated as such by the Trustee, after consultation with the Depositor;
provided, however, that if fewer than two of such banks provide a LIBOR rate,
then any leading banks selected by the Trustee after consultation with the
Depositor which are engaged in transactions in United States dollar deposits
in
the international Eurocurrency market.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any of the Floating Rate Certificates, Class C Certificates or
Class P 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 clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relief
Act”: The Servicemembers Civil Relief Act, or any state law providing for
similar relief.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect 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 by which (i) interest collectible
on
such 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 Mortgage Rate
for
such Mortgage Loan before giving effect to the application of the Relief
Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: 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 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, (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 (including the PMI Policy), required to be maintained
pursuant to this Agreement and any proceeds thereof, (iv) the Depositor’s rights
under the Assignment Agreement (including any security interest created thereby)
and (v) the Collection Account, the Distribution Account (subject to the last
sentence of this definition) and 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. Notwithstanding
the foregoing, however, a REMIC election will not be made with respect to the
Net WAC Rate Carryover Reserve Account, the Basis Risk Cap Agreement, the
Interest Rate Cap Agreement, the Cap Account, the Cap Allocation Agreement,
any
Servicer Prepayment Charge Payment Amounts, the Swap Account, the Supplemental
Interest Trust or the Interest Rate Swap Agreement.
“REMIC
1
Regular Interests”: Any of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC 3,
as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest LTAA
minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralization Target Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
2
Overcollateralization Amount”: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP) minus (ii) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interest LTA1, REMIC 2
Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest
LTA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular
Interest LTM10, in each case as of such date of determination.
“REMIC
2
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and related REO Properties then outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest
LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2
Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest
LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2
Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest
LTM8, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest LTM10 and
the
denominator of which is the aggregate Uncertificated Principal Balance of REMIC
2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2, REMIC 2 Regular Interest
LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest LTM1, REMIC 2
Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest
LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2
Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest
LTM9, REMIC 2 Regular Interest LTM10 and REMIC 2 Regular Interest
LTZZ.
“REMIC
2
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The following is
a
list of each of the REMIC 2 Regular Interests: REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2, REMIC 2 Regular
Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTZZ,
REMIC 2 Regular Interest LTP and REMIC 2 Regular Interest LTIO.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest), pursuant
to
Article II hereunder, and all amounts deposited therein, with respect to which
a
separate REMIC election is to be made.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
6”: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the REMIC 6 Regular
Interest SWAP IO and the Class R-X Certificates (in respect of the Class R-6
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“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.
“REMIC
Regular Interests”: The REMIC 1 Regular Interests, the REMIC 2 Regular
Interests, the Class C Interest, the Class P Interest and the Class IO
Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trustee pursuant
to Section 4.04.
“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 the Servicer in respect of an
REO Property pursuant to Section 3.24.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“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 Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
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 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.24 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.24 for unpaid 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.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.24.
“Reportable
Event”: The meaning set forth in Section 4.05(b)(ii).
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16 of 1%) of the
one-month United States dollar lending rates which banks in The City of New
York
selected by the Depositor are quoting on the relevant Interest Determination
Date to the principal London offices of leading banks in the London interbank
market or (ii) in the event that the Trustee can determine no such arithmetic
mean, in the case of any Interest Determination Date after the initial Interest
Determination Date, the lowest one-month United States dollar lending rate
which
such New York banks selected by the Depositor are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
Xxxxxx Xxx eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: The Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee, any director, any vice
president, any assistant vice president, the Secretary, any assistant secretary,
the Treasurer, any assistant treasurer 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.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Seller”:
Greenwich Capital Financial Products, Inc., a Delaware corporation, in its
capacity as Seller under the Assignment Agreement.
“Senior
Principal Distribution Amount”: The excess of (x) the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 55.30% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Servicer”:
Nationstar Mortgage, LLC or any successor servicer appointed as herein provided,
in its capacity as a servicer hereunder.
“Servicer
Certification”: As defined in Section 4.05(b)(iii).
“Servicer
Event of Termination”: One or more of the events described in Section
7.01.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the 18th
day of
the calendar month in which such Distribution Date occurs or, if such
18th
day is
not a Business Day, the immediately succeeding Business Day.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer in the performance of its servicing obligations, 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, (iv) obtaining broker price opinions, (v) locating missing
Mortgage Loan documents and (vi) compliance with the obligations under Sections
3.01, 3.09, 3.14, 3.16, and 3.24. Servicing Advances also include any reasonable
“out-of-pocket” costs and expenses (including legal fees) incurred by the
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments of Mortgage in connection with any
foreclosure in respect of any Mortgage Loan to the extent not recovered from
the
related Mortgagor or otherwise payable under this Agreement. The Servicer shall
not be required to make any Servicing Advance that would be a Nonrecoverable
Advance.
“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 Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words “per annum”) and (b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on
a
Mortgage Loan is received. The obligation for payment of the Servicing Fee
is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds) of
such Monthly Payment collected by the Servicer, or as otherwise provided under
Section 3.11.
“Servicing
Fee Rate”: 0.50% per annum.
“Servicing
Officer”: Any officer of the 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 Servicer
to
the Trustee and the Depositor on the Closing Date, as such list may from time
to
time be amended.
“Servicing
Standard”: As defined in Section 3.01.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Trustee in connection with the transfer of servicing from a
predecessor servicer, including, without limitation, any reasonable costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the Trustee (or any successor servicer appointed pursuant
to
Section 7.02) to service the Mortgage Loans properly and effectively and any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not 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 the sum of
(i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced by the
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date
to
the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Due Period for
the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
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: (a) as of any date of determination up to
but
not 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 Fund, 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 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
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.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date following the
Distribtuion Date on which the aggregate Certificate Principal Balance of the
Class A Certificates has been reduced to zero and (ii) the later to occur of
(x)
the Distribution Date occurring in March 2010 and (y) the first Distribution
Date on which the Credit Enhancement Percentage (calculated for this purpose
only after taking into account payments of principal on the Mortgage Loans
but
prior to distribution of the Principal Distribution Amount to the Certificates
then entitled to distributions of principal on such Distribution Date) is equal
to or greater than 44.70%.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub- Servicing Agreement
and which meets the qualifications of a Sub-Servicer pursuant to Section
3.02.
“Sub-Servicing
Account”: A segregated account established by a Sub-Servicer which meets the
requirements set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Subordinate
Certificates”: The Mezzanine Certificates and the Class C
Certificates.
“Subsequent
Recoveries”: As of any Distribution Date, amounts received by the Servicer (net
of any related expenses permitted to be reimbursed) pursuant to Section 3.11)
specifically related to a Mortgage Loan that was the subject of a liquidation
or
an REO Disposition prior to the related Prepayment Period that resulted in
a
Realized Loss.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.10(a).
“Supplemental
Interest Trust Trustee”: Deutsche Bank National Trust Company, a national
banking association, not in its individual capacity but solely in its capacity
as Supplemental Interest Trust Trustee, and any successor thereto.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.10. The Swap Account must be an Eligible Account.
“Swap
Credit Support Annex”: The credit support annex, dated the Closing Date, between
the Supplemental Interest Trust Trustee and the Interest Rate Swap Provider,
which is annexed to and forms part of the Interest Rate Swap
Agreement.
“Swap
Expense Fee Rate”: With respect to any Distribution Date, an amount, expressed
as a per annum rate, equal to the sum of (a) the product of (i) the Net Swap
Payment made to the Swap Provider divided by the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after taking into account any Principal Prepayments received during the related
Prepayment Period) and (ii) 12 and (b) the product of (i) any Swap Termination
Payment (other than a Swap Termination Payment resulting from a Swap Provider
Trigger Event) made to the Swap Provider divided by the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after taking into account any Principal Prepayments received during
the
related Prepayment Period) and (ii) 12.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of REMIC 6 Regular
Interest SWAP IO and the scheduled notional amount pursuant to the Interest
Rate
Swap Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: The
swap
provider under the Interest Rate Swap Agreement. Initially, the Swap Provider
shall be The
Royal
Bank of Scotland plc.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
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
by
the Trustee on behalf of each REMIC, 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.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(i) on
any
Distribution Date on which the Class A Certificates remain outstanding, the
Delinquency Percentage exceeds 35.79% of the Credit Enhancement Percentage;
or
(ii) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date (the “Realized Loss Percentage”), exceeds
the applicable percentages set forth below with respect to such Distribution
Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
|
March
2009 through February 2010
|
1.60%
for the first month, plus an additional 1/12th
of
1.95%
for each month thereafter.
|
|
|
March
2010 through February 2011
|
3.55%
for the first month, plus an additional 1/12th
of
2.10%
for each month thereafter.
|
|
|
March
2011 through February 2012
|
5.65%
for the first month, plus an additional 1/12th
of
1.65%
for each month thereafter.
|
|
|
March
2012 through February 2013
|
7.30%
for the first month, plus an additional 1/12th
of
0.95%
for each month thereafter.
|
|
|
March
2013 and thereafter
|
8.25%
|
“Trust”:
Soundview Home Loan Trust 2007-NS1, the trust created hereunder.
“Trust
Fund”: All of the assets of the Trust, which is the trust created hereunder
consisting of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6, any Servicer
Prepayment Charge Payment Amounts, the Net WAC Rate Carryover Reserve Account,
the Swap Account, the Supplemental Interest Trust, the Interest Rate Swap
Agreement, the Basis Risk Cap Agreement, the Interest Rate Cap Agreement, the
Cap Allocation Agreement and the Cap Account.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or any
successor trustee appointed as herein provided.
“Trustee
Fee”: The amount payable to the Trustee on each Distribution Date pursuant to
Section 8.05 as compensation for all services rendered by the Trustee in the
execution and administration of the trust created hereby and in the exercise
and
performance of any of the powers and duties of the Trustee hereunder, which
amount, with respect to the Mortgage Loans and REO Properties and for any
calendar month, shall be equal to one-twelfth of the Trustee Fee Rate (without
regard to the words “per annum” in the definition thereof) multiplied by the
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Due Period.
“Trustee
Fee Rate”: 0.0037% per annum.
“Trustee
Compensation”: Such compensation, if any, as set forth in the separate fee
schedule between the Trustee and the Depositor, which compensation shall be
payable to the Trustee on each Distribution Date pursuant to Section 8.05 as
compensation for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the powers and
duties of the Trustee hereunder. The Trustee Compensation shall be one Business
Day of income earned on amounts on deposit in the Distribution Account plus
the
Trustee Fee.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
of such REMIC Regular Interest. In each case, Uncertificated Accrued Interest
will be reduced by any Net Prepayment Interest Shortfalls, Relief Act Interest
Shortfalls (allocated to such REMIC Regular Interests based on their respective
entitlements to interest irrespective of any Net Prepayment Interest Shortfalls
and Relief Act Interest Shortfalls for such Distribution Date).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
1 Regular Interests
|
|
|
1st
through 10th
|
I-1-A
through X-00-X
|
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
|
00
|
X-0-X
through X-00-X
|
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
|
00
|
X-0-X
through X-00-X
|
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
|
00
|
X-0-X
through X-00-X
|
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
|
00
|
X-0-X
through I-51-A
|
|
|
19
|
I-10-A
through I-51-A
|
|
|
20
|
I-11-A
through I-51-A
|
|
|
21
|
I-12-A
through I-51-A
|
|
|
22
|
I-13-A
through I-51-A
|
|
|
23
|
I-14-A
through I-51-A
|
|
|
24
|
I-15-A
through I-51-A
|
|
|
25
|
I-16-A
through I-51-A
|
|
|
26
|
I-17-A
through I-51-A
|
|
|
27
|
I-18-A
through I-51-A
|
|
|
28
|
I-19-A
through I-51-A
|
|
|
29
|
I-20-A
through I-51-A
|
|
|
30
|
I-21-A
through I-51-A
|
|
|
31
|
I-22-A
through I-51-A
|
|
|
32
|
I-23-A
through I-51-A
|
|
|
33
|
I-24-A
through I-51-A
|
|
|
34
|
I-25-A
through I-51-A
|
|
|
35
|
I-26-A
through I-51-A
|
|
|
36
|
I-27-A
through I-51-A
|
|
|
37
|
I-28-A
through I-51-A
|
|
|
38
|
I-29-A
through I-51-A
|
|
|
39
|
I-30-A
through I-51-A
|
|
|
40
|
I-31-A
through I-51-A
|
|
|
41
|
I-32-A
through I-51-A
|
|
|
42
|
I-33-A
through I-51-A
|
|
|
43
|
I-34-A
through I-51-A
|
|
|
44
|
I-35-A
through I-51-A
|
|
|
45
|
I-36-A
through I-51-A
|
|
|
46
|
I-37-A
through I-51-A
|
|
|
47
|
I-38-A
through I-51-A
|
|
|
48
|
I-39-A
through I-51-A
|
|
|
49
|
I-40-A
through I-51-A
|
|
|
50
|
I-41-A
through I-51-A
|
|
|
51
|
I-42-A
through I-51-A
|
|
|
52
|
I-43-A
through I-51-A
|
|
|
53
|
I-44-A
through I-51-A
|
|
|
54
|
I-45-A
through I-51-A
|
|
|
55
|
I-46-A
through I-51-A
|
|
|
56
|
I-47-A
through I-51-A
|
|
|
57
|
I-48-A
through I-51-A
|
|
|
58
|
I-49-A
through I-51-A
|
|
|
59
|
I-50-A
and I-51-A
|
|
|
60
|
I-51-A
|
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest, the amount of
such REMIC Regular Interest outstanding as of any date of determination. As
of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto
as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.08 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.08, and the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ shall be increased by interest deferrals as
provided in Section 4.08. With respect to the Class C Interest as of any date
of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Floating Rate Certificates
and the Class P Certificates then outstanding. The Uncertificated Principal
Balance of each REMIC Regular Interest that has an Uncertificated Principal
Balance shall never be less than zero.
“Uncertificated
REMIC Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through Rate or the
Uncertificated REMIC 2 Pass-Through Rate, as applicable.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to REMIC 1 Regular Interest I and REMIC
1 Regular Interest P, a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans. With respect to each REMIC
1
Regular Interest ending with the designation “A”, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans
multiplied by 2, subject to a maximum rate of 10.700%. With respect to each
REMIC 1 Regular Interest ending with the designation “B”, the greater of (x) a
per annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans over (ii)
10.700% and (y) 0.00%.
“Uncertificated
REMIC 2 Pass-Through Rate”:
With
respect to REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTA1, REMIC
2
Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest
LTA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTM10, REMIC 2 Regular Interest LTZZ and REMIC 2 Regular Interest LTP,
a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I and REMIC 1 Regular Interest P, the
Uncertificated REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests
for
each such Distribution Date, (w) with respect to REMIC 1 Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests, weighted on
the
basis of the Uncertificated Principal Balance of such REMIC 1 Regular Interests
for each such Distribution Date and (x) with respect to REMIC 1 Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC 1
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
1st through
9th
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
10
|
I-1-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
11
|
I-2-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
12
|
I-3-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-2-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
13
|
I-4-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-3-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
14
|
I-5-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-4-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
15
|
I-6-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-5-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
16
|
I-7-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-6-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
17
|
I-8-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-7-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
18
|
I-9-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-8-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
19
|
I-10-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-9-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
20
|
I-11-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-10-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
21
|
I-12-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-11-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
22
|
I-13-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-12-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
23
|
I-14-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-13-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
24
|
I-15-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-14-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
25
|
I-16-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-15-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
26
|
I-17-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-16-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
27
|
I-18-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-17-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
28
|
I-19-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-18-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
29
|
I-20-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-19-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
30
|
I-21-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-20-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
31
|
I-22-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-21-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
32
|
I-23-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-22-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
33
|
I-24-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-23-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
34
|
I-25-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-24-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
35
|
I-26-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-25-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
36
|
I-27-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-26-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
37
|
I-28-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
38
|
I-29-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
39
|
I-30-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-29-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
40
|
I-31-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-30-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
41
|
I-32-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-31-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
42
|
I-33-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-32-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
43
|
I-34-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-33-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
44
|
I-35-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-34-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
45
|
I-36-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-35-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
46
|
I-37-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-36-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
47
|
I-38-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-37-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
48
|
I-39-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-38-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
49
|
I-40-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
50
|
I-41-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-40-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
51
|
I-42-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-41-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
52
|
I-43-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
53
|
I-44-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
54
|
I-45-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
55
|
I-46-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
56
|
I-47-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-46-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
57
|
I-48-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-47-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
58
|
I-49-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
59
|
I-50-A
and I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-49-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
60
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
thereafter
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
With
respect to REMIC 2 Regular Interest LTIO, and (a) the first 9 Distribution
Dates, the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A”, and (b) the
10th
Distribution Date through the 60th
Distribution Date, the excess of (i) the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for REMIC 1 Regular Interests ending with the
designation “A” over (ii) 2 multiplied by Swap LIBOR, and (c) thereafter 0.00%.
“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 pursuant to Section 3.14.
“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 United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury Regulations) provided that, for purposes solely of the restrictions
on
the transfer of Residual Certificates, no partnership or other entity treated
as
a partnership for United States federal income tax purposes shall be treated
as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation
for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, 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 any Class of Floating Rate
Certificates and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not
distributed on the Certificates of such Class on such preceding Distribution
Date, to the extent permitted by law, at the Pass-Through Rate for such Class
for the related Accrual Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the value thereof
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.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Floating Rate Certificates and
the Class C Certificates shall have 98% of the Voting Rights (allocated among
the Holders of the Floating Rate Certificates and the Class C Certificates
in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates), the Class P Certificates shall have 1% of the Voting
Rights and the Residual Certificates shall have 1% of the Voting Rights. The
Voting Rights allocated to any Class of Certificates (other than the Class
P
Certificates and the Residual Certificates) shall be allocated among all Holders
of each such Class in proportion to the outstanding Certificate Principal
Balance of such Certificates and the Voting Rights allocated to the Class P
Certificates and the Residual Certificates shall be allocated among all Holders
of each such Class in proportion to such Holders’ respective Percentage
Interest; provided, however that when none of the Regular Certificates are
outstanding, 100% of the Voting Rights shall be allocated among Holders of
the
Residual Certificates in accordance with such Holders’ respective Percentage
Interests in the Certificates of such Class. The Class FL Certificates shall
have no Voting Rights.
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.
SECTION
1.03 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Floating Rate Certificates and the Class C Certificates for any
Distribution Date, (1) the aggregate amount of any Net Prepayment Interest
Shortfalls and any Relief Act Interest Shortfalls incurred in respect of the
Mortgage Loans for any Distribution Date shall be allocated first, among the
Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Floating Rate Certificates on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTA1,
REMIC 2 Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular
Interest LTA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2,
REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular
Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7,
REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular
Interest LTM10 and REMIC 2 Regular Interest LTZZ pro rata based on, and to
the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 2 Pass-Through Rate on the respective Uncertificated Principal Balance
of
each such REMIC 2 Regular Interest.
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 in trust 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 identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the Master
Agreement (as assigned to the Depositor pursuant to the terms of the Assignment
Agreement), (v) the
right
to receive any amounts payable under the Basis Risk Cap Agreement and the
Interest Rate Swap Agreement,
(vi)
payments made to the Cap Trustee by the Interest Rate Cap Provider and the
Cap
Account, (vii) all other assets included or to be included in the Trust Fund
and
(viii) all proceeds of any of the foregoing. Such assignment includes all
interest and principal due and collected by the Depositor or the Servicer after
the Cut-off Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby deliver
to, and deposit with, the Trustee (or the Custodian on behalf of the Trustee),
the following documents or instruments with respect to each Mortgage Loan so
transferred and assigned (with respect to each Mortgage Loan, a “Mortgage
File”):
(i) the
original Mortgage Note including any riders thereto, endorsed either (A) in
blank, in which case the Trustee shall cause the endorsement to be completed
or
(B) in the following form: “Pay to the order of Deutsche Bank National Trust
Company, as Trustee, 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
1.00%
of the Pool Balance as of the Cut-off Date;
(ii) upon
return from the applicable public recording office, the original Mortgage
(noting the presence of the MIN of the Mortgage Loan and language indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan), 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 copy of such Mortgage
or
power of attorney, as the case may be, certified to be a true and complete
copy
of the original submitted for recording;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment, in
form and substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank or (B) to “Deutsche Bank National Trust Company, as Trustee,
without recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is registered on the MERS® System
and noting the presence of MIN);
(v) upon
return from the applicable public recording office, the original or a certified
copy of the lender’s title insurance policy;
(vi) the
original PMI Policy; and
(vii) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
The
Depositor herewith also delivers to the Trustee an executed copy of the
Assignment Agreement and the Master Agreement.
If
any of
the documents referred to in Section 2.01(iii) or (iv) above has as of the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee (or the Custodian on behalf of the Trustee) no later
than the Closing Date, of a copy of each such document certified by the
Originator in the case of (x) above or the applicable public recording office
in
the case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Originator,
delivery to the Trustee (or the Custodian on behalf of the Trustee) promptly
upon receipt thereof of either the original or a copy of such document certified
by the applicable public recording office to be a true and complete copy of
the
original. The Servicer or the Depositor shall deliver or cause to be delivered
to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt
thereof any other documents constituting a part of a Mortgage File received
with
respect to any Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption or modification of any Mortgage
Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Trustee (or the Custodian
on
behalf of the Trustee) shall enforce the obligations of the Originator under
the
Master Agreement to cure such defect or deliver such missing document to the
Trustee (or the Custodian on behalf of the Trustee) within 90 days. If the
Originator does not cure such defect or deliver such missing document within
such time period, the Trustee shall use commercially reasonable efforts to
enforce the obligations of the Originator to either repurchase or substitute
for
such Mortgage Loan in accordance with Section 2.03; provided, however, that
the
Trustee shall not be under any obligation to take any action pursuant to this
paragraph unless directed by the Depositor and provided, further, the Depositor
hereby agrees to assist the Trustee in enforcing any obligations of the
Originator to repurchase or substitute for a Mortgage Loan which has breached
a
representation or warranty under the Assignment Agreement. In connection with
the foregoing, it is understood that the Trustee shall have no duty to discover
any such defects except in the course of performing its review of the Mortgage
Files to the extent set forth herein.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee (upon receipt of notice from the Custodian) shall enforce the
obligations of the Originator under the Master Agreement to cause the
Assignments which were delivered in blank to be completed and to record all
Assignments referred to in Section 2.01(iii) hereof and, to the extent
necessary, in Section 2.01(iv) hereof. The Trustee shall enforce the obligations
of the Originator under the Master Agreement to deliver such assignments for
recording within 180 days of the Closing Date. In the event that any such
Assignment is lost or returned unrecorded because of a defect therein, the
Trustee shall enforce the obligations of the Originator under the Master
Agreement to promptly have a substitute Assignment prepared or have such defect
cured, as the case may be, and thereafter cause each such Assignment to be
duly
recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments shall not be required to be submitted
for recording (except with respect to any Mortgage Loan located in Maryland)
unless the Trustee and the Depositor receive notice that such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates; provided, however, each Assignment, except with
respect to any Mortgage Loan for which MERS is identified on the Mortgage,
shall
be submitted for recording in the manner described above, at no expense to
the
Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction
by the Holders of Certificates entitled to at least 25% of the Voting Rights,
(ii) the occurrence of a Servicer Event of Termination, (iii) the occurrence
of
a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage and (vi)
upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days
or
more Delinquent. In the event of (i) through (vi) set forth in the immediately
preceding sentence, the Trustee shall enforce the obligations of the Originator
to deliver such Assignments for recording as provided above, promptly and in
any
event within 30 days following receipt of notice by the Originator.
Notwithstanding the foregoing, if the Originator fails to pay the cost of
recording the Assignments, such expense will be paid by the Trustee shall be
reimbursed for such expenses by the Trust. In the event an Assignment is not
recorded, neither the Trustee nor the Servicer will have any liability for
its
failure to act on notices that were not received and would have been had such
Assignment been recorded, except, in the case of the Trustee, with respect
to
Mortgage Loans that are subject to provisions (i) through (vi) set forth in
this
paragraph, if the Trustee shall have failed to timely request the Originator
to
cause such Assignments to be recorded.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 365
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
365
day period, the Servicer shall deliver to the Custodian, within such 365 day
period, an Officers’ Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(C) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, if known
and
(D) specify the date the applicable recorded document is expected to be
delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a “High-Cost Home Loan” as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
SECTION
2.02 Acceptance
by Trustee.
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, the Trustee acknowledges receipt (or receipt by the Custodian on behalf
of the Trustee) of the documents referred to in Section 2.01 above and all
other
assets included in the definition of “Trust Fund” and declares that 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 (or the Custodian on behalf of the Trustee) agrees to execute and
deliver to the Depositor and the Servicer on or prior to the Closing Date an
acknowledgment of receipt of the related original Mortgage Note for each
Mortgage Loan (with any exceptions noted), substantially in the form attached
as
Exhibit F-3 hereto (or in the case of the Custodian, Exhibit 1 to the Custodial
Agreement).
The
Trustee (or
the
Custodian on behalf of the Trustee) agrees,
for the benefit of the Certificateholders, to review, or that it has reviewed
pursuant to Section 2.01 (or to cause the Custodian to review or that it has
caused the Custodian to have reviewed) each Mortgage File on or prior to the
Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage Loan, within 45 days after the
assignment thereof). The Trustee (or the Custodian on behalf of the Trustee)
further agrees, for the benefit of the Certificateholders, to certify to the
Depositor and the Servicer in substantially the form attached hereto as Exhibit
F-1 (or
in
the case of the Custodian, Exhibit 1 to the Custodial Agreement),
within
45 days after the Closing Date, with respect to each Mortgage Loan (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 45 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 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 to 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 appear on their face to 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
(1) and (3) of the Mortgage Loan Schedule accurately reflects information set
forth in the Mortgage File. It is herein acknowledged that, in conducting such
review, the Trustee (or the Custodian, as applicable) 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, legally
enforceable, valid or binding 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.
Prior
to
the first anniversary date of this Agreement the Trustee (or the Custodian
on
behalf of the Trustee) shall deliver to the Depositor and the Servicer a final
certification in the form annexed hereto as Exhibit F-2 (or, in the case of
the
Custodian, Exhibit 2 to the Custodial Agreement), 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 (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or not to conform with respect to any characteristics which
are within the scope of the Trustee’s (or the Custodian’s, as applicable) review
as provided herein, at the conclusion of its review, the Trustee (or the
Custodian on behalf of the Trustee) shall so notify the Seller, the Depositor,
the Originator and the Servicer. In addition, upon the discovery by the
Depositor or the Servicer (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 Originator in the Master Agreement or the Seller in
the
Assignment Agreement in respect of any Mortgage Loan which materially adversely
affects such Mortgage Loan or the interests of the Certificateholders in such
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties to this Agreement.
Notwithstanding
anything to the contrary in this Agreement, in no event shall the Trustee be
liable to any party hereto or to any third party for the performance of any
custody-related functions, including without limitation with respect to which
the Custodian shall fail to take action on behalf of the Trustee or failure
by
the Custodian to perform any custody related functions in the event the
Custodian shall fail to satisfy all the related requirements under this
Agreement or the Custodial 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 Originator or the Seller.
(a) Upon
discovery or receipt of written notice from the Custodian of any materially
defective document in, or that a document is missing from, a Mortgage File
or of
the breach by the Originator or the Seller, as applicable, of any
representation, warranty or covenant under the Master Agreement or the
Assignment Agreement, as applicable, in respect of any Mortgage Loan which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the Trustee shall request that the Originator
deliver such missing document or that the Originator or the Seller cure such
defect or breach within 90 days from the date the Originator or the Seller
was
notified of such missing document, defect or breach, and if the Originator
or
the Seller does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce (in
the
manner set forth in Section 2.01) the Originator’s obligation under the Master
Agreement or the Assignment Agreement or the Seller’s obligation under the
Assignment Agreement and notify the Originator or the Seller, as applicable,
of
its obligation to repurchase such 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)). The Purchase Price for the
repurchased Mortgage Loan shall be remitted to the Servicer for deposit in
the
Collection Account, and the Trustee, (or the Custodian on behalf of the
Trustee), upon receipt of written certification from the Servicer of such
deposit, shall release to the Originator or the Seller, as applicable, the
related Mortgage File and the Trustee shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Originator
or
the Seller, as applicable, shall furnish to it and as shall be necessary to
vest
in the Originator or Seller, as applicable, any Mortgage Loan released pursuant
hereto and the Trustee and the Custodian 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 Originator or the Seller, as applicable, 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);
provided, however, the Seller may not substitute for any Mortgage Loan which
breaches a representation or warranty regarding abusive or predatory lending
laws. In furtherance of the foregoing, if the Originator or the Seller, as
applicable, is not a member of MERS and repurchases a Mortgage Loan which is
registered on the MERS® System, the Originator or the Seller, as applicable, at
its own expense and without any right of reimbursement, shall cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Originator or the Seller, as applicable, and
shall
cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS’ rules and regulations. It is understood and agreed that
the obligation of the Originator or the Seller, as applicable, 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 Originator or the Seller, as applicable, respecting such omission, defect
or
breach available to the Trustee on behalf of the Certificateholders. In order
to
facilitate the discovery of any materially defective document in, or that a
document is missing from, a Mortgage File or of the breach by the Originator
of
any representation, warranty or covenant under the Master Agreement in respect
of any Mortgage Loan which materially adversely affects the value of that
Mortgage Loan or the interest therein of the Certificateholders, the Depositor
shall have the right to request from the Originator, on behalf of the Trust
Fund, a copy of the Mortgage File (including any documents related thereto,
such
as payment histories, collection screens and payoff amounts), or if any portion
or copy of such Mortgage File is being held by the Servicer or the Custodian,
from the Servicer or the Custodian, as applicable and the Originator, Servicer
or Custodian are hereby authorized to deliver such file to the
Depositor.
Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation, warranty or covenant of the
Depositor set forth in Section 2.06, which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor shall
cure such breach in all material respects.
(b) Within
90
days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of any representation, warranty or covenant of the
Servicer set forth in Section 2.05 which materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the Servicer shall
cure such breach in all material respects.
(c) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) 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 Originator or the Seller, as applicable, substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by the
Originator or the Seller, as applicable, delivering to the Trustee, (or the
Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage
Loan
or Loans, the Mortgage Note, the Mortgage and the Assignment to the Trustee,
and
such other documents and agreements, with all necessary endorsements thereon,
as
are required by Section 2.01, together with an Officers’ Certificate providing
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. The Trustee (or the Custodian on behalf
of
the Trustee), shall acknowledge receipt for such Qualified Substitute Mortgage
Loan or Loans and, within 45 days thereafter, shall review such documents as
specified in Section 2.02 and deliver to the Depositor and the Servicer, with
respect to such Qualified Substitute Mortgage Loan or Loans, a certification
substantially in the form attached hereto as Exhibit F-1, with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Trustee (or the Custodian on behalf of the Trustee) shall deliver to the
Depositor and the Servicer a certification substantially in the form of Exhibit
F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans,
with any applicable 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 Originator or the Seller, as
applicable. 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 Originator
or
the Seller, as applicable, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Depositor
shall give or cause to be given written notice to the Trustee, who shall forward
such 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 and the Custodian. Upon such
substitution by the Originator or the Seller, as applicable, such Qualified
Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool
and
shall be subject in all respects to the terms of this Agreement and the
Assignment Agreement, including all applicable representations and warranties
thereof included in the Assignment Agreement as of the date of
substitution.
For
any
month in which the Originator or the Seller, as applicable, substitutes one
or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Servicer will determine the amount (the “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 Stated
Principal Balance thereof as of the date of substitution, together with one
month’s interest on such Stated Principal Balance at the applicable Mortgage
Rate. On the date of such substitution, the Originator or the Seller, as
applicable, will deliver or cause to be delivered to the Servicer for deposit
in
the Collection Account an amount equal to the Substitution Adjustment, if any,
and the Trustee, (or the Custodian on behalf of the Trustee), upon receipt
of
the related Qualified Substitute Mortgage Loan or Loans and certification by
the
Servicer of such deposit, shall release to the Originator or the Seller, as
applicable, the related Mortgage File or Files and the Trustee shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Originator or the Seller, as applicable, shall deliver to
it
and as shall be necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
In
addition, pursuant to the terms of the Assignment Agreement, the Originator
or
the Seller, as applicable, shall obtain at its own expense and deliver to the
Trustee an Opinion of Counsel to the effect that such substitution 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)(I) of the Code or on “contributions after the startup date” under
Section 860G(d)(I) of the Code or (b) any REMIC to fail to qualify as a REMIC
at
any time that any Certificate is outstanding. If such Opinion of Counsel can
not
be delivered, then such substitution may only be effected at such time as the
required Opinion of Counsel can be given.
(d) Upon
discovery by the Depositor, the 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 hereto. In
connection therewith, the Originator or the Depositor, as the case may be,
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. Such repurchase or
substitution shall be made (i) by the Originator if the affected Mortgage Loan’s
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Originator under the Assignment
Agreement or (ii) the Depositor, if the affected Mortgage Loan’s status as a
non-qualified mortgage is a breach of any representation or warranty of the
Depositor set forth in Section 2.06, or if its status as a non-qualified
mortgage is a breach of no representation or warranty. Any such repurchase
or
substitution shall be made in the same manner as set forth in Section 2.03(a)
or
2.03(d), if made by the Originator, or Section 2.03(b), if made by the
Depositor. The Trustee shall reconvey to the Depositor or the Originator, as
the
case may be, 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.
(e) Upon
discovery or receipt of written notice of a breach by the Seller of any
representation, warranty or covenant made by the Seller under the Assignment
Agreement in respect of any Mortgage Loan which materially adversely affects
the
value of such Mortgage Loan or the interest therein of the Certificateholders,
and if either (i) such Mortgage Loan is not in breach of any representation,
warranty or covenant of the Originator or (ii) the Originator has failed to
remedy such representation, warranty or covenant with respect to such Mortgage
Loan, then the Trustee shall enforce the obligation of the Seller to remedy
such
breach, to the extent provided in the Assignment Agreement, in the manner and
within the time periods set forth in the Assignment Agreement.
SECTION
2.04 [Reserved].
SECTION
2.05 Representations,
Warranties and Covenants of the Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of each of the Trustee, the Certificateholders and to the Depositor
that
as of the Closing Date or as of such date specifically provided
herein:
(i) The
Servicer is a limited liability company duly formed and validly existing under
the laws governing its creation and existence, is in compliance with the laws
of
each state in which any Mortgaged Property is located to the extent necessary
to
enable it to perform its obligations hereunder and is in good standing in each
jurisdiction in which the nature of its business or the properties owned or
leased by it make such qualification necessary. The Servicer has all requisite
limited liability company power and authority to own and operate its properties,
to carry out its business as presently conducted and as proposed to be conducted
and to enter into and discharge its obligations under this Agreement and the
other operative documents to which the Servicer is a party.
(ii) The
execution and delivery of this Agreement and any other operative document to
which it is a party by the Servicer and its performance and compliance with
the
terms hereof and thereof have been duly authorized by all necessary limited
liability company action on the part of the Servicer and will not violate the
Servicer’s certificate of formation or limited liability company agreement or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Servicer is a party or
by
which the Servicer is bound or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Servicer or any of its properties.
(iii) This
Agreement and the other operative documents to which the Servicer is a party,
assuming due authorization, execution and delivery by the other parties hereto
and thereto, each constitutes a valid, legal and binding obligation of the
Servicer, enforceable against it in accordance with the terms hereof and
thereof, except as the enforcement hereof and thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(iv) The
Servicer is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency, which default could materially and adversely affect the condition
(financial or otherwise) or operations of the Servicer or its properties or
the
consequences of which could materially and adversely affect its performance
hereunder or under the other operative documents to which the Servicer is a
party.
(v) No
litigation, proceeding or investigation is pending with respect to which the
Servicer has received service of process or, to the best of the Servicer’s
knowledge, threatened against the Servicer which litigation, proceeding or
investigation might have consequences that would prohibit its entering into
this
Agreement or any other operative documents to which it is a party or that would
materially and adversely affect the condition (financial or otherwise) or
operations of the Servicer or its properties or might have consequences that
would materially and adversely affect the validity or the enforceability of
the
Mortgage Loans or the Servicer’s performance hereunder and under the other
operative documents to which the Servicer is a party.
(vi)
All
actions, approvals, consents, waivers, exemptions, variances, franchises,
orders, permits, authorizations, rights and licenses required to be taken,
given
or obtained, as the case may be, by or from any federal, state or other
governmental authority or agency (other than any such actions, approvals, etc.
under any state securities laws, real estate syndication or “Blue Sky” statutes,
as to which the Servicer makes no such representation or warranty), that are
necessary or advisable in connection with the execution and delivery by the
Servicer of the operative documents to which it is a party, have been duly
taken, given or obtained, as the case may be, are in full force and effect
on
the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired
or
no review thereof may be obtained or appeal therefrom taken, and are adequate
to
authorize the consummation of the transactions contemplated by this Agreement
and the other operative documents on the part of the Servicer and the
performance by the Servicer of its obligations under this Agreement and such
of
the other operative documents to which it is a party.
(vii) The
collection practices used by the Servicer with respect to the Mortgage Loans
have been, in all material respects, legal, proper, prudent and customary in
the
home equity mortgage servicing business.
(viii) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer.
(ix) The
Servicer is not in default under any agreement involving financial obligations
or on any outstanding obligation, in any such case which could materially
adversely impact the financial condition or operations of the Servicer or
adversely impact the Servicer’s performance of its obligations under the
operative documents.
(x) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains or will contain
any untrue statement of a material fact.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee (or the Custodian on behalf of the Trustee) and shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders. Upon discovery
by any of the Depositor, the Servicer or the Trustee of a breach of any of
the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan, Prepayment Charge or the
interests therein of the Certificateholders, the party discovering such breach
shall give prompt written notice (but in no event later than two Business Days
following such discovery) to the Servicer and the Trustee. The foregoing shall
not, however, limit any remedies available to the Certificateholders, the
Depositor or the Trustee on behalf of the Certificateholders, pursuant to the
Master Agreement respecting a breach of the representations, warranties and
covenants of the Originator.
SECTION
2.06 Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust, the Servicer 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 and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(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 articles 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 thereby, 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 articles 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
(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.
(x) The
beneficial owner of the payments made under the Interest Rate Swap Agreement,
the Interest Rate Cap Agreement or the Basis Risk Cap Agreement is either (i)
a
“U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United
States Treasury Regulations) for United States federal income tax purposes
and
an “Exempt recipient” within the meaning of section 1.6049-4(c)(1)(ii) of United
States Treasury Regulations, or (ii) a "non-U.S. branch of a foreign person"
as
that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the "Regulations") for United States federal income tax purposes,
and it is a "foreign person" as that term is used in section 1.6041-4(a)(4)
of
the Regulations for United States federal income tax purposes. The Depositor
understands that both the Trust and the Trustee are relying on this information
in connection with the execution of the Interest Rate Swap Agreement, the
Interest Rate Cap Agreement and the Basis Risk Cap 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, 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 Trustee, 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 Authorization
to Enter into Basis Risk Cap Agrement, Interest Rate Cap Agreement and Interest
Rate Swap Agreement.
(a) The
Trustee is hereby directed to execute and deliver the Basis Risk Cap Agreement
on behalf of Party B (as defined therein) and to exercise the rights, perform
the obligations, and make the representations of Party B thereunder, solely
in
its capacity as Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity. The Servicer, the Depositor and the Certificateholders
(by
acceptance of their Certificates) acknowledge and agree that (i) the Trustee
shall execute and deliver the Basis Risk Cap Agreement on behalf of Party B
(as
defined therein) and (ii) the Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Trustee on behalf of Party B as defined therein) and not in its
individual capacity.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
of the Basis Risk Cap Agreement, and the performance of its duties and
satisfaction of its obligations thereunder.
(b) The
Trustee, not in its individual capacity but solely in its separate capacity
as
Cap Trustee, is hereby directed to exercise the rights, perform the obligations,
and make any representations to be exercised, performed, or made by the Cap
Trustee, as described herein. The Cap Trustee is hereby directed to execute
and
deliver the Interest Rate Cap Agreement on behalf of Party B (as defined
therein) and to exercise the rights, perform the obligations, and make the
representations of Party B thereunder, solely in its capacity as Cap Trustee
on
behalf of Party B (as defined therein) and not in its individual capacity.
The
Servicer, the Depositor and the Certificateholders (by acceptance of their
Certificates) acknowledge and agree that (i) the Cap Trustee shall execute
and
deliver the Interest Rate Cap Agreement on behalf of Party B (as defined
therein), (ii) the Cap Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Cap Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity and (iii) the Trustee on the Cap Trustee’s behalf shall also
be entitled to exercise the rights and obligated to perform the obligations
of
Party B under the Interest Rate Cap Agreement. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection
to
the Trustee shall apply to the Cap Trustee’s execution of the Interest Rate Cap
Agreement, and the performance of its duties and satisfaction of its obligations
thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
(as Cap Trustee) of the Interest Rate Cap Agreement, and the performance of
its
duties and satisfaction of its obligations thereunder.
(c) The
Trustee, not in its individual capacity but solely in its separate capacity
as
Supplemental Interest Trust Trustee, is hereby directed to exercise the rights,
perform the obligations, and make any representations to be exercised,
performed, or made by the Supplemental Interest Trust Trustee, as described
herein. The Supplemental Interest Trust Trustee is hereby directed to execute
and deliver the Interest Rate Swap Agreement on behalf of Party B (as defined
therein) and to exercise the rights, perform the obligations, and make the
representations of Party B thereunder, solely in its capacity as Supplemental
Interest Trust Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity. The Servicer, the Depositor and the Certificateholders
(by
acceptance of their Certificates) acknowledge and agree that (i) the
Supplemental Interest Trust Trustee shall execute and deliver the Interest
Rate
Swap Agreement on behalf of Party B (as defined therein), (ii) the Supplemental
Interest Trust Trustee shall exercise the rights, perform the obligations,
and
make the representations of Party B thereunder, not in its individual capacity
but, solely in its capacity as Supplemental Interest Trust Trustee on behalf
of
Party B (as defined therein) and (iii) the Trustee on the Supplemental Interest
Trust Trustee’s behalf shall also be entitled to exercise the rights and
obligated to perform the obligations of Party B under the Interest Rate Swap
Agreement. Every provision of this Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustee shall apply
to
the Supplemental Interest Trust Trustee’s execution of the Interest Rate Swap
Agreement, and the performance of its duties and satisfaction of its obligations
thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
(as Supplemental Interest Trust Trustee) of the Interest Rate Swap Agreement,
and the performance of its duties and satisfaction of its obligations
thereunder.
SECTION
2.09 Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC 3, REMIC
4,
REMIC 5 and REMIC 6 by the Trustee; Issuance of Certificates.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-2 Interest). The Trustee acknowledges receipt of the REMIC 1 Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the holders of the REMIC 2 Regular Interests and
the Class R Certificates (in respect of the Class R-2 Interest). The interests
evidenced by the Class R-2 Interest, together with the REMIC 2 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
2.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the
Class
C Interest, the Class P Interest, the Class IO Interest and
the
Class R Certificates (in respect of the Class R-3 Interest). The Trustee
acknowledges receipt of the REMIC 3 Regular Interests and declares that it
holds
and will hold the same in trust for the exclusive use and benefit of the Holders
of the Regular Certificates (other than the Class C Certificates or Class P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest). The
interests evidenced by the Class R-3 Interest, together with the Regular
Certificates (other than the Class C Certificates or Class P Certificates),
the
Class C Interest, the Class P Interest and the Class IO Interest, constitute
the
entire beneficial ownership interest in REMIC 3.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The Trustee acknowledges receipt of the Class C Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class C Certificates and the Class R-X Certificates (in
respect of the Class R-4 Interest). The interests evidenced by the Class R-4
Interest, together with the Class C Certificates, constitute the entire
beneficial ownership interest in REMIC 4.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-5 Interest). The interests evidenced by the Class R-5
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC 5.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest (which is uncertificated) for the benefit of the Holders of the
REMIC 6 Regular Interest SWAP IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The Trustee acknowledges receipt of the Class IO
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the REMIC 6 Regular Interest SWAP
IO
and the Class R-X Certificates (in respect of the Class R-6 Interest). The
interests evidenced by the Class R-6 Interest, together with the REMIC 6 Regular
Interest SWAP IO, constitute the entire beneficial ownership interest in REMIC
6.
(g) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
subsection (a) hereof, (ii) the assignment and delivery to the Trustee of REMIC
2 (including the Residual Interest therein represented by the Class R-2
Interest) and the acceptance by the Trustee thereof, pursuant to subsection
(b)
hereof, (iii) the assignment and delivery to the Trustee of REMIC 3 (including
the Residual Interest therein represented by the Class R-3 Interest) and the
acceptance by the Trustee thereof, pursuant to subsection (c) hereof, (iv)
the
assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance
by
the Trustee thereof, pursuant to subsection (d) hereof, (v) the assignment
and
delivery to the Trustee of REMIC 5 (including the Residual Interest therein
represented by the Class R-5 Interest) and the acceptance by the Trustee
thereof, pursuant to subsection (e) hereof, and (vi) the assignment and delivery
to the Trustee of REMIC 6 (including the Residual Interest therein represented
by the Class R-6 Interest) and the acceptance by the Trustee thereof, pursuant
to subsection (f) hereof, the Trustee, 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, (A) the Class R
Certificates in authorized denominations evidencing the Class R-1 Interest,
the
Class R-2 Interest and the Class R-3 Interest and (B) the Class R-X Certificates
in authorized denominations evidencing the Class R-4 Interest, the Class R-5
Interest and the Class R-6 Interest.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01 Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
the terms of this Agreement and the respective Mortgage Loans and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of prudent mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek the timely
and
complete recovery of principal and interest on the Mortgage Notes and (b) shall
waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the
following circumstances: (i) such waiver is standard and customary in servicing
similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Servicer,
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan or (iii) the collection of
such
Prepayment Charge would be in violation of applicable laws. If a Prepayment
Charge is waived as permitted by meeting the standard described in clause (iii)
above, then the Trustee (upon receipt of written notice from the Servicer that
such waiver has occurred) shall enforce the obligation of the Originator to
pay
the amount of such waived Prepayment Charge to the Trustee for deposit in the
Distribution Account for the benefit of the Holders of the Class P Certificates.
If a Prepayment Charge is waived other than in accordance with (i), (ii) or
(iii) above, the Servicer shall pay the amount of such waived Prepayment Charge
to the Trustee for deposit in the Distribution Account for the benefit of the
Holders of the Class P Certificates. Notwithstanding the foregoing, that the
Servicer shall not have an obligation to pay the amount of any uncollected
Prepayment Charge if the failure to collect such amount is the direct result
of
inaccurate or incomplete information furnished to the Servicer by the Originator
or a prior servicer, in which case the Trustee (upon receipt of written notice
from the Servicer that such waiver has occurred) shall enforce the obligation
of
the Originator to pay the amount of such waived Prepayment Charge to the Trustee
for deposit in the Distribution Account for the benefit of the Holders of the
Class P Certificates.
To
the
extent consistent with the foregoing, the Servicer shall also seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes. Subject only to the above-described servicing standards and the terms
of
this Agreement and of the respective Mortgage Loans, the Servicer shall have
full power and authority, acting alone or through Sub-Servicers as provided
in
Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in its own name
or in the name of a Sub-Servicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with the servicing standards set forth above, to execute and deliver,
on behalf of the Certificateholders and the Trustee, and upon notice to the
Trustee, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and Certificateholders. The Servicer shall
service and administer the Mortgage Loans in accordance with applicable state
and federal law and shall provide to the Mortgagors any reports required to
be
provided to them thereby. The Servicer shall also comply in the performance
of
this Agreement with all reasonable rules and requirements of any standard hazard
insurance policy. Subject to Section 3.17, the Trustee shall execute, at the
written request of the Servicer, and furnish to the Servicer and any
Sub-Servicer such documents as are necessary or appropriate to enable the
Servicer or any Sub-Servicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer a power of
attorney to carry out such duties. The Trustee shall not be liable for the
actions of the Servicer or any Sub-Servicers under such powers of
attorney.
In
accordance with the standards of the preceding paragraph, the Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the timely payment of taxes and assessments on the Mortgaged Properties, which
advances shall be Servicing Advances reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.09, and further
as
provided in Section 3.11. Any cost incurred by the Servicer or by Sub-Servicers
in effecting the timely payment of taxes and assessments on a Mortgaged Property
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS System, or cause the removal from the registration of any Mortgage
Loan
on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses (i) incurred as a result of
MERS
discontinuing or becoming unable to continue operations in connection with
the
MERS System or (ii) if the affected Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, incurred
in
connection with the actions described in the preceding sentence, shall be
subject to withdrawal by the Servicer from the Collection Account.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances (other than Servicing Advances) with respect to a Mortgage Loan (except
as provided in Section 4.04) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan (except with respect to a
Mortgage Loan that is in default or, in the judgment of the Servicer, such
default is reasonably foreseeable) that would change the Mortgage Rate, reduce
or increase the Stated Principal Balance (except for reductions resulting from
actual payments of principal) or change the final maturity date on such Mortgage
Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment
of
the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver
or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or
final, temporary or proposed Treasury Regulations promulgated thereunder) and
(B) cause any REMIC to fail to qualify as a REMIC under the Code or the
imposition of any tax on “prohibited transactions” or “contributions after the
startup date” under the REMIC Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related mortgage note, the Servicer shall not
be
required to enforce any provision in any mortgage note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
The
Servicer may delegate its responsibilities under this Agreement; provided,
however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
SECTION
3.02 Sub-Servicing
Agreements Between Servicer and Sub-Servicers; Subcontractors.
(a) The
Servicer may enter into Sub-Servicing Agreements (provided that such agreements
would not result in a withdrawal or a downgrading by the Rating Agencies of
the
rating on any Class of Certificates) with Sub-Servicers, for the servicing
and
administration of the Mortgage Loans; provided, however, that each such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of Mortgage Loans in a manner consistent with
the
servicing arrangement contemplated hereunder.
(b) Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
in which the related Mortgaged Properties it is to service are situated, if
and
to the extent required by applicable law to enable the Sub-Servicer to perform
its obligations hereunder and under the Sub-Servicing Agreement and (ii) a
Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing
Agreement must impose on the Sub-Servicer requirements conforming to the
provisions set forth in Section 3.08, 3.20 or 3.21 and provide for servicing
of
the Mortgage Loans consistent with the terms of this Agreement. The Servicer
will examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub-Servicing Agreement will not be inconsistent
with
any of the provisions of this Agreement. The Servicer and the Sub-Servicers
may
enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form
shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders, without the consent of
the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
variation without the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights from the provisions set forth in Section 3.08
(relating to insurance or priority requirements of Sub-Servicing Accounts,
or
credits and charges to the Sub- Servicing Accounts or the timing and amount
of
remittances by the Sub-Servicers to the Servicer), Section 3.20 or Section
3.21,
are conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee copies of all
Sub-Servicing Agreements and any amendments or modifications thereof, promptly
upon the Servicer’s execution and delivery of such instruments.
(c) As
part
of its servicing activities hereunder, the Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the Trustee
and the Certificateholders, shall enforce the obligations of each Sub-Servicer
under the related Sub-Servicing Agreement, including, without limitation, any
obligation of a Sub-Servicer to make advances in respect of delinquent payments
as required by a Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-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 Servicer, in its
good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans, or (ii) from a specific recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
SECTION
3.03 Successor
Sub-Servicers.
The
Servicer shall be entitled to terminate any Sub-Servicing Agreement and the
rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Servicer
without any act or deed on the part of such Sub-Servicer or the Servicer, and
the Servicer either shall service directly the related Mortgage Loans or shall
enter into a Sub-Servicing Agreement with a successor Sub-Servicer which
qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Trustee (if the Trustee is acting as successor
Servicer) without fee, in accordance with the terms of this Agreement, in the
event that the Servicer, shall, for any reason, no longer be the Servicer
(including termination due to a Servicer Event of Termination).
SECTION
3.04 Liability
of the Servicer.
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub- Servicer for indemnification of the Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such
indemnification.
SECTION
3.05 No
Contractual Relationship Between Sub-Servicers and the Trustee or
Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the Trustee and the Certificateholders shall not be deemed parties thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the Sub-Servicer except as set forth in Section 3.06. The Servicer
shall be solely liable for all fees owed by it to any Sub-Servicer, irrespective
of whether the Servicer’s compensation pursuant to this Agreement is sufficient
to pay such fees.
SECTION
3.06 Assumption
or Termination of Sub-Servicing Agreements.
In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Termination), the Trustee (or
the successor servicer appointed pursuant to Section 7.02) shall thereupon
assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Trustee elects to terminate any Sub-Servicing Agreement in accordance with
its
terms as provided in Section 3.03. Upon such assumption, the Trustee (or the
successor servicer appointed pursuant to Section 7.02 shall be deemed, subject
to Section 3.03, to have assumed all of the Servicer’s interest therein and to
have replaced the Servicer as a party to each Sub-Servicing Agreement to the
same extent as if each Sub-Servicing Agreement had been assigned to the assuming
party, except that (i) the Servicer shall not thereby be relieved of any
liability or obligations under any Sub-Servicing Agreement and (ii) none of
the
Trustee, its designee or any successor Servicer shall be deemed to have assumed
any liability or obligation of the Servicer that arose before it ceased to
be
the Servicer.
The
Servicer at its expense shall, upon request of the Trustee deliver to the
assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party.
SECTION
3.07 Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing and the servicing
standards set forth in Section 3.01, the Servicer may in its discretion (i)
waive any late payment charge or, if applicable, penalty interest or any
provisions of any Mortgage Loan requiring the related Mortgagor to submit to
mandatory arbitration with respet to disputes arising thereunder, or (ii) extend
the due dates for Monthly Payments due on a Mortgage Note for a period of not
greater than 180 days; provided that any extension pursuant to clause (ii)
above
shall not affect the amortization schedule of any Mortgage Loan for purposes
of
any computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
Advances on such Mortgage Loan during such extension pursuant to Section 4.03
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may waive, modify
or
vary any term of such Mortgage Loan (including, but not limited to,
modifications that change the Mortgage Rate, forgive the payment of principal
or
interest or extend the final maturity date of such Mortgage Loan), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan (such payment, a “Short
Pay-off”) or consent to the postponement of strict compliance with any such term
or otherwise grant indulgence to any Mortgagor if in the Servicer’s
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such
action).
SECTION
3.08 Sub-Servicing
Accounts.
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION
3.09 Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
To
the
extent the terms of a Mortgage provide for Escrow Payments, the Servicer shall
establish and maintain one or more accounts (the “Servicing Accounts”), into
which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, fire, flood, and hazard
insurance premiums, hazard insurance proceeds (to the extent such amounts are
to
be applied to the restoration or repair of the property) and comparable items
for the account of the Mortgagors (“Escrow Payments”) shall be deposited and
retained. Servicing Accounts shall be Eligible Accounts. The Servicer shall
deposit in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities, all Escrow Payments collected on account of the Mortgage Loans
and
shall deposit in the Servicing Accounts, in no event more than two Business
Days
after the receipt of such Escrow Payments, all Escrow Payments collected on
account of the Mortgage Loans for the purpose of effecting the payment of any
such items as required under the terms of this Agreement. Withdrawals of amounts
from a Servicing Account may be made only to (i) effect timely payment of taxes,
assessments, fire, flood, and hazard insurance premiums, and comparable items;
(ii) reimburse the Servicer out of related collections for any advances made
pursuant to Section 3.01 (with respect to taxes and assessments) and Section
3.14 (with respect to fire, flood and hazard insurance); (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest,
if
required and as described below, to Mortgagors on balances in the Servicing
Account; or (v) clear and terminate the Servicing Account at the termination
of
the Servicer’s obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article IX. As part of its servicing
duties, the Servicer shall pay to the Mortgagors interest on funds in Servicing
Accounts, to the extent required by law and, to the extent that interest earned
on funds in the Servicing Accounts is insufficient, to pay such interest from
its or their own funds, without any reimbursement therefor. Notwithstanding
the
foregoing, the Servicer shall not be obligated to collect Escrow Payments if
the
related Mortgage Loan does not require such payments but the Servicer shall
nevertheless be obligated to make Servicing Advances as provided in Section
3.01. In the event the Servicer shall deposit in the Servicing Accounts any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Servicing Accounts, any provision to the contrary
notwithstanding.
To
the
extent that a Mortgage does not provide for Escrow Payments, the Servicer (i)
shall determine whether any such payments are made by the Mortgagor in a manner
and at a time that is necessary to avoid the loss of the Mortgaged Property
due
to a tax sale or the foreclosure as a result of a tax lien and (ii) shall ensure
that all insurance required to be maintained on the Mortgaged Property pursuant
to this Agreement is maintained. If any such payment has not been made and
the
Servicer receives notice of a tax lien with respect to the Mortgage Loan being
imposed, the Servicer will, to the extent required to avoid loss of the
Mortgaged Property, advance or cause to be advanced funds necessary to discharge
such lien on the Mortgaged Property. The Servicer assumes full responsibility
for the payment of all such bills and shall effect payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances from its
own
funds to effect such payments.
SECTION
3.10 Collection
Account and Distribution Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain one or more
separate, segregated trust accounts (such account or accounts, the “Collection
Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the clearing account (which account must be an Eligible
Account) in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than two Business Days after the Servicer’s receipt
thereof, and shall thereafter deposit in the Collection Account, in no event
more than one Business Day after the deposit of such funds into the clearing
account, as and when received or as otherwise required hereunder, the following
payments and collections received or made by it from and after the Cut-off
Date
(other than in respect of principal or interest on the related Mortgage Loans
due on or before the Cut-off Date), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to
a
Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds collected
in
respect of any particular REO Property and amounts paid by the Servicer in
connection with a purchase of Mortgage Loans and REO Properties pursuant to
Section 9.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03 or Section 9.01;
(vii) all
amounts required to be deposited in connection with shortfalls in principal
amount of Qualified Substitute Mortgage Loans pursuant to Section 2.03;
and
(viii) all
Prepayment Charges collected by the Servicer and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans.
For
purposes of the immediately preceding sentence, the Cut-off Date with respect
to
any Qualified Substitute Mortgage Loan shall be deemed to be the date of
substitution.
The
foregoing requirements for deposit in the Collection Accounts shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees (other than Prepayment Charges) need not be deposited by the Servicer
in
the Collection Account. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trustee in immediately
available funds for deposit in an account established and maintained by the
Trustee, held in trust for the benefit of the Certificateholders (the
“Distribution Account”): (i) on the Servicer Remittance Date, that portion of
the Available Funds for the related Distribution Date then on deposit in the
Collection Account, the amount of all Prepayment Charges collected during the
applicable Prepayment Period by the Servicer and Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans then on deposit in the Collection Account and (ii) on each
Business Day as of the commencement of which the balance on deposit in the
Collection Account exceeds $75,000 following any withdrawals pursuant to the
next succeeding sentence, the amount of such excess, but only if the Collection
Account constitutes an Eligible Account solely pursuant to clause (ii) of the
definition of “Eligible Account.” If the balance on deposit in the Collection
Account exceeds $75,000 as of the commencement of business on any Business
Day
and the Collection Account constitutes an Eligible Account solely pursuant
to
clause (ii) of the definition of “Eligible Account,” the Servicer shall, on such
Business Day, withdraw from the Collection Account any and all amounts payable
or reimbursable to the Depositor, the Servicer, the Trustee, the Seller or
any
Sub-Servicer pursuant to Section 3.11 and shall pay such amounts to the Persons
entitled thereto.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give advance
notice to the Trustee of the location of the Collection Account maintained
by it
when established and prior to any change thereof. The Trustee shall forward
such
notice to the Depositor.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Distribution Account
and
must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Collection Account; provided, however, that the Trustee shall
have
the sole authority to withdraw any funds held pursuant to this subsection (d).
In the event the Servicer shall deliver to the Trustee for deposit in the
Distribution Account any amount not required to be deposited therein, it may
at
any time request that the Trustee withdraw such amount from the Distribution
Account and remit to it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Servicer shall deliver to the Trustee from
time to time for deposit, and upon written notification from the Servicer,
the
Trustee shall so deposit, in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.03;
(ii) any
amounts required to be deposited pursuant to Section 3.24(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid by the Servicer in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01; and
(iv) any
amounts required to be deposited pursuant to Section 3.25 in connection with
any
Prepayment Interest Shortfalls.
(e) The
Servicer shall deposit in the Collection Account any amounts required to be
deposited pursuant to Section 3.12(b) in connection with losses realized on
Permitted Investments with respect to funds held in the Collection
Account.
SECTION
3.11 Withdrawals
from the Collection Account and the Distribution Account.
The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes, without priority, or as described in Section
4.03:
(i) to
remit
to the Trustee for deposit in the Distribution Account the amounts required
to
be so remitted pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for Advances, but only to the
extent of amounts received which represent Late Collections (net of the related
Servicing Fees) of Monthly Payments on Mortgage Loans with respect to which
such
Advances were made in accordance with the provisions of Section
4.03;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (A) any unpaid
Servicing Fees, (B) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Liquidation Proceeds, Insurance
Proceeds or other amounts as may be collected by the Servicer from a Mortgagor,
or otherwise received with respect to such Mortgage Loan and (C) without
limiting any right of withdrawal set forth in clause (4) below, any Servicing
Advances made with respect to a Mortgage Loan that, following the final
liquidation of a Mortgage Loan are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance Proceeds
received with respect to such Mortgage Loan are insufficient to reimburse the
Servicer or any Sub-Servicer for such Servicing Advances;
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Collection Account;
(v) to
pay to
the Servicer or the Seller, as the case may be, with respect to each Mortgage
Loan that has previously been purchased or replaced pursuant to Section 2.03
or
Section 3.16(c) all amounts received thereon subsequent to the date of purchase
or substitution, as the case may be;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.03;
(vii) to
reimburse the Servicer or the Depositor for expenses incurred by or reimbursable
to the Servicer or the Depositor, as the case may be, pursuant to Section
6.03;
(viii) to
reimburse the Servicer or the Trustee, as the case may be, for expenses
reasonably incurred in respect of the breach or defect giving rise to the
purchase obligation under Section 2.03 of this Agreement that were included
in
the Purchase Price of the Mortgage Loan, including any expenses arising out
of
the enforcement of the purchase obligation;
(ix) [reserved];
(x) to
pay,
or to reimburse the Servicer for advances in respect of expenses incurred in
connection with any Mortgage Loan pursuant to Section 3.16(b); and
(xi) to
clear
and terminate the Collection Account pursuant to Section 9.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (2), (3), (4), (5), (6), (8) and (9) above. The Servicer shall
provide written notification to the Trustee, on or prior to the next succeeding
Servicer Remittance Date, upon making any withdrawals from the Collection
Account pursuant to subclause (vii) above.
(b) The
Trustee shall, from time to time, make withdrawals from the Distribution
Account, for any of the following purposes, without priority:
(i) to
make
distributions in accordance with Section 4.01;
(ii) to
pay
itself the Trustee Fee pursuant to Section 8.05;
(iii) to
pay
any amounts in respect of taxes pursuant to Section 9.01(g);
(iv) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
(v) to
pay
any amounts required to be paid to the Trustee pursuant to this Agreement,
including but not limited to funds required to be paid pursuant to Section
3.06,
Section 4.01, Section 7.02 and Section 8.05;
(vi) to
pay to
itself any Trustee Compensation;
(vii) to
pay to
an Advancing Person reimbursements for Advances and/or Servicing Advances
pursuant to Section 3.28; and
(viii) to
pay
the PMI Insurer the PMI Insurance Fee;
(ix) to
pay
the Credit Risk Manager the Credit Risk Manager Fee.
SECTION
3.12 Investment
of Funds in the Collection Account.
(a) The
Servicer may direct any depository institution maintaining the Collection
Account (for purposes of this Section 3.12, an “Investment Account”) to invest
the funds in such Investment Account in one or more Permitted Investments
specified in such instruction bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if a Person other than the Trustee
is the obligor thereon, and (ii) no later than the date on which such funds
are
required to be withdrawn from such account pursuant to this Agreement, if the
Trustee is the obligor thereon. All such Permitted Investments shall be held
to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (in its capacity as such)
or in
the name of a nominee of the Trustee. The Trustee shall be entitled to sole
possession (except with respect to investment direction of funds held in the
Collection Account, the Distribution Account and any income and gain realized
thereon) over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or
its
agent, together with any document of transfer necessary to transfer title to
such investment to the Trustee or its nominee. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Trustee shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account held by or on behalf of the Servicer, shall be for the
benefit of the Servicer and shall be subject to its withdrawal in accordance
with Section 3.11. The
Servicer shall deposit in the Collection Account the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 8.01 and Section 8.02(a)(v), upon the request of
the
Holders of Certificates representing more than 50% of the Voting Rights
allocated to any Class of Certificates, shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(c) The
Trustee is hereby directed to invest all amounts on deposit in the Distribution
Account during the Float Period in Permitted Investments of the type set forth
in clause (vi) of the definition thereof. All such amounts in the Distribution
Account shall be invested in the DWS Xxxxxxx Money Market Fund 2403. All income
and gain realized from the investment of funds deposited in the Distribuiton
Account during the Float Period shall be distributed to the Holders of the
Class
FL Certificates (the “Class FL Holder”) as set forth in Section 4.01(h) for the
next Distribution Date. The Class FL Holder shall deposit in the Distribution
Account, from its own funds, the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in the Distribution
Account during the Float Period immediately upon notification of such loss.
SECTION
3.13 [Reserved].
SECTION
3.14 Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity Coverage.
The
terms
of each Mortgage Note require the related Mortgagor to maintain fire and hazard
insurance policies. To the extent such policies are not maintained, the Servicer
shall cause to be maintained for each Mortgaged Property fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of the
current principal balance of such Mortgage Loan and the amount necessary to
fully compensate for any damage or loss to the improvements which are a part
of
such property on a replacement cost basis, in each case in an amount not less
than such amount as is necessary to avoid the application of any coinsurance
clause contained in the related hazard insurance policy. The Servicer shall
also
cause to be maintained fire and hazard insurance on each REO Property with
extended coverage as is customary in the area where the Mortgaged Property
is
located in an amount which is at
least
equal to the lesser of (i) 100% of the insurable value on a replacement cost
basis of the improvements securing such Mortgage Loan and (ii) the greater
of
(a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds of such insurance shall be sufficient to prevent the
application to the Mortgagor or the loss payee of any coinsurance clause under
the policy.
The
Servicer will comply in the performance of this Agreement with all reasonable
rules and requirements of each insurer under any such hazard policies. Any
amounts to be collected by the Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the property subject
to
the related Mortgage or amounts to be released to the Mortgagor in accordance
with the procedures that the Servicer would follow in servicing loans held
for
its own account, subject to the terms and conditions of the related Mortgage
and
Mortgage Note) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.11, if received in respect of a Mortgage Loan,
or in the REO Account, subject to withdrawal pursuant to Section 3.24, if
received in respect of an REO Property. Any cost incurred by the Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid principal balance
of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage
Loan
so permit; provided, however, that the Servicer may capitalize, pursuant to
the
terms of Section 3.07, the amount of any Servicing Advances incurred pursuant
to
this Section 3.14 in connection with the modification of a Mortgage Loan. It
is
understood and agreed that no earthquake or other additional insurance is to
be
required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the related Mortgaged Property is located in an area
identified by the Flood Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available) the Servicer shall
cause to be maintained a flood insurance policy meeting the requirements of
the
current guidelines of the Federal Insurance Administration is in effect with
a
generally acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx
Mac
in an amount representing coverage equal to the lesser of: (i) the minimum
amount required, under the terms of coverage, to compensate for any damage
or
loss on a replacement cost basis (or the unpaid balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
and
(ii) the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines, in accordance with applicable law,
that
a Mortgaged Property is located in a special flood hazard area and is not
covered by flood insurance or is covered in an amount less than the amount
required by the Flood Disaster Protection Act of 1973, as amended, the Servicer
shall notify the related Mortgagor that the Mortgagor must obtain such flood
insurance coverage, and if said Mortgagor fails to obtain the required flood
insurance coverage within forty-five (45) days after such notification, the
Company shall immediately force place the required flood insurance on the
Mortgagor’s behalf. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan and
(ii)
the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program (assuming that the area
in
which such Mortgaged Property is located is participating in such
program).
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of B:VI or better in Best’s Key Rating
Guide insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of this Section 3.14, it being understood and agreed that
such policy may contain a deductible clause, in which case the Servicer shall,
in the event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy complying with the first two sentences of
this
Section 3.14, and there shall have been one or more losses which would have
been
covered by such policy, deposit to the Collection Account from its own funds
the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of
the
Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself,
the Trustee, the Trust Fund and the Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such
policy.
The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of its respective obligations under this Agreement, which policy
or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer, has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond in the form and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
the
Servicer, has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. The Servicer shall be deemed to have complied with this provision if an
Affiliate of the Servicer, has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty days’ prior written notice to the Trustee.
SECTION
3.15 Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the then current underwriting criteria of the Servicer for mortgage
loans similar to the Mortgage Loans. In connection with any assumption or
substitution, the Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Servicer shall not take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption or substitution of liability agreement
will be retained by the Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The Servicer shall notify the Trustee and the
Custodian that any such substitution or assumption agreement has been completed
by forwarding to the Custodian the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage
File
and shall, for all purposes, be considered a part of such Mortgage File to
the
same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
SECTION
3.16 Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall, consistent with the servicing standard set forth in Section
3.01, foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and
as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. The Servicer shall be responsible for all
costs and expenses incurred by it in any such proceedings; provided, however,
that such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.11 and Section 3.24. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan after reimbursement to itself for
such
expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund, the Servicer or the Certificateholders would be considered to hold title
to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of
such Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(ix), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(ix), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
(c) The
Servicer shall have the right to purchase from REMIC 1 any defaulted Mortgage
Loan that is 90 days or more delinquent, which the Servicer determines in good
faith will otherwise become subject to foreclosure proceedings (evidence of
such
determination to be delivered in writing to the Trustee, in form and substance
satisfactory to the Trustee prior to purchase), at a price equal to the Purchase
Price. The Purchase Price for any Mortgage Loan purchased hereunder shall be
deposited in the Collection Account, and the Trustee, upon receipt of written
certification from the Servicer of such deposit, shall release or cause to
be
released to the Servicer, the related Mortgage File and the Trustee, upon
receipt of written certification from the Servicer, as applicable, of such
deposit, shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as the Servicer, shall furnish and as shall
be
necessary to vest in the Servicer title to any Mortgage Loan released pursuant
hereto.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Servicer or any
Sub-Servicer for any related unreimbursed Servicing Advances and Advances,
pursuant to Section 3.11(a)(ii) or (a)(iii)(B); second, to accrued and unpaid
interest on the Mortgage Loan, to the date of the Final Recovery Determination,
or to the Due Date prior to the Distribution Date on which such amounts are
to
be distributed if not in connection with a Final Recovery Determination; and
third, as a recovery of principal of the Mortgage Loan. If the amount of the
recovery so allocated to interest is less than the full amount of accrued and
unpaid interest due on such Mortgage Loan, the amount of such recovery will
be
allocated by the Servicer as follows: first, to unpaid Servicing Fees; and
second, to the balance of the interest then due and owing. The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii)(A).
SECTION
3.17 Trustee
to Cooperate; Release of Mortgage Files.
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Custodian, by a Request
for Release in the form of Exhibit E (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request that the Custodian, on behalf of the
Trustee, deliver to it the Mortgage File. Upon receipt of such certification
and
request, the Custodian shall within five Business Days release the related
Mortgage File to the Servicer and the Servicer is authorized to cause the
removal from the registration on the MERS® System of any such Mortgage, if
applicable, and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction
or
cancellation or of partial or full release. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Collection Account or the Distribution Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Custodian shall, upon request of the
Servicer and delivery to the Custodian of a Request for Release in the form
of
Exhibit E, release the related Mortgage File to the Servicer, and the Trustee
shall, at the direction of the Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such Request for Release
shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Custodian when the need therefor by
the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been delivered
to
an attorney, or to a public trustee or other public official as required by
law,
for purposes of initiating or pursuing legal action or other proceedings for
the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
the Servicer has delivered to the Custodian, on behalf of the Trustee, a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are
required to be deposited into the Collection Account have been so deposited,
or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Custodian, on behalf of the Trustee, to the
Servicer.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer any court pleadings, requests for trustee’s sale or
other documents reasonably necessary to the foreclosure or trustee’s sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain
a
deficiency judgment, or to enforce any other remedies or rights provided by
the
Mortgage Note or Mortgage or otherwise available at law or in equity. Each
such
certification shall include a request that such pleadings or documents be
executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale.
SECTION
3.18 Servicing
Compensation.
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees out of Insurance Proceeds or Liquidation Proceeds to the extent permitted
by Section 3.11(a)(iii)(A) and out of amounts derived from the operation and
sale of an REO Property to the extent permitted by Section 3.24. The right
to
receive the Servicing Fee may not be transferred in whole or in part except
in
connection with the transfer of all of the Servicer’s responsibilities and
obligations under this Agreement.
Additional
servicing compensation in the form of assumption fees, late payment charges
and
other similar fees and charges (other than Prepayment Charges) shall be retained
by the Servicer (subject to Section 3.25) only to the extent such fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account, and
pursuant to Section 3.24(b) to withdraw from any REO Account, as additional
servicing compensation, interest or other income earned on deposits therein,
subject to Section 3.12 and Section 3.25. The Servicer shall be required to
pay
all expenses incurred by it in connection with its servicing activities
hereunder (including premiums for the insurance required by Section 3.14, to
the
extent such premiums are not paid by the related Mortgagors or by a
Sub-Servicer, servicing compensation of each Sub-Servicer) and shall not be
entitled to reimbursement therefor except as specifically provided
herein.
SECTION
3.19 Reports;
Collection Account Statements.
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward
to
the Trustee, upon the request of the Trustee, a statement prepared by the
Servicer setting forth the status of the Collection Account as of the close
of
business on the last day of the calendar month relating to such Distribution
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Collection Account of each category
of
deposit specified in Section 3.10(a) and each category of withdrawal specified
in Section 3.11. Such statement may be in the form of the then current Xxxxxx
Mae Monthly Accounting Report for its Guaranteed Mortgage Pass-Through Program
with appropriate additions and changes, and shall also include information
as to
the aggregate of the outstanding principal balances of all of the Mortgage
Loans
as of the last day of the calendar month immediately preceding such Distribution
Date. Copies of such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon the request and at the expense of the
requesting party, provided such statement is delivered by the Servicer to the
Trustee.
SECTION
3.20 Statement
as to Compliance.
On
or
before March 15th
of each
calendar year (or March 24th
of any
calendar year in which a Form 10-K will not be filed), commencing in 2008,
the
Servicer shall deliver to the Trustee a statement of compliance (an “Annual
Statement of Compliance”) addressed to the Trustee and the Depositor, to the
effect that (i) a review of the Servicer’s activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement during such period has been made under such officer’s
supervision, and (ii) to the best of such officers’ knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
in all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
The
Servicer shall deliver a similar Annual Statement of Compliance by any
Sub-Servicer to which the Servicer has delegated any servicing responsibilities
with respect to the Mortgage Loans, to the Trustee as described above as and
when required with respect to the Servicer.
If
the
Servicer cannot deliver the related Annual Statement of Compliance by March
15th
of such year (or March 24th
of any
calendar year in which a Form 10-K will not be filed), the Depositor, may permit
a cure period for the Servicer to deliver such Annual Statement of Compliance,
but in no event later than March 25th
of such
year.
Failure
of the Servicer to timely comply with this Section 3.20 (taking into account
the
cure period if permitted as set forth in the preceding paragraph) shall be
deemed an Event of Default, and the Trustee may, in addition to whatever rights
the Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance give notice to Noteholders
that they have ten Business Days to object. If no such objection is received,
the Trustee shall immediately terminate all the rights and obligations of the
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Servicer for the same (other than as provided
herein with respect to unreimbursed Advances or Servicing Advances or accrued
and unpaid Servicing Fees). This paragraph shall supercede any other provision
in this Agreement or any other agreement to the contrary.
The
Servicer shall indemnify and hold harmless the Depositor and the Trustee and
their respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon a breach of the Servicer's obligations under this Section
3.20.
SECTION
3.21 Assessments
of Compliance and Attestation Reports.
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
the Servicer shall deliver to the Trustee on or before March 15th
of each
calendar year (or March 24th
of any
calendar year in which a Form 10-K will not be filed) beginning in 2008, a
report regarding the Servicer’s assessment of compliance (an “Assessment of
Compliance”) with the applicable Servicing Criteria (as set forth in Exhibit S)
during the preceding calendar year. The Assessment of Compliance must contain
the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria, which
will also be attached to the Assessment of Compliance, to assess compliance
with
the Servicing Criteria applicable to the Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer.
On
or
before March 15th
of each
calendar year (or March 24th
of any
calendar year in which a Form 10-K will not be filed) beginning in 2008, the
Servicer shall furnish to the Trustee a report of a registered public accounting
firm reasonably acceptable to the Trustee and the Depositor (an “Attestation
Report”). Such Attestation Report shall be in accordance with Rules 1 02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
The
Servicer shall cause and any Sub-Servicer, and each subcontractor determined
by
the Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report as and when provided
above.
Such
Assessment of Compliance, as to any Sub-Servicer, shall address each of the
Servicing Criteria applicable to the Sub-Servicer. Notwithstanding the
foregoing, as to any subcontractor determined by the Servicer to be
“participating in the servicing function,” an Assessment of Compliance is not
required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
If
the
Servicer cannot deliver any Assessment of Compliance or Attestation Report
by
March 15th
of such
year (or March 24th
of any
calendar year in which a Form 10-K will not be filed), the Depositor may permit
a cure period for the Servicer to deliver such Assessment of Compliance or
Attestation Report, but in no event later than March 25th
of such
year.
Failure
of the Servicer to timely comply with this Section 3.21 (taking into account
the
cure period if permitted as set forth in the preceding paragraph) shall be
deemed an Event of Default, and the Trustee may, in addition to whatever rights
the Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, give notice to Noteholders
that they have ten Business Days to object. If no such objection is received,
the Indenture Trustee shall immediately terminate all the rights and obligations
of the Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Servicer for the same (other than
as
provided herein with respect to unreimbursed Advances or Servicing Advances
or
accrued and unpaid Servicing Fees). This paragraph shall supercede any other
provision in this Agreement or any other agreement to the contrary.
The
Trustee shall also provide an Assessment of Compliance (with respect to items
(a) - (d) but not (e) above) and Attestation Report, as and when provided above,
which shall at a minimum address each of the Servicing Criteria specified on
Exhibit S hereto which are indicated as applicable to the “trustee”.
Notwithstanding the foregoing, as to any trustee, an Assessment of Compliance
is
not required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
Each
of
the Servicer and the Trustee shall indemnify and hold harmless the Depositor
and
the Trustee, as applicable, and its officers, directors and Affiliates from
and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain based upon a breach of the Servicer’s or
the Trustee’s obligations, as applicable, under this Section 3.21.
SECTION
3.22 [Reserved].
SECTION
3.23 Access
to
Certain Documentation.
The
Servicer shall provide to the Trustee and the Depositor at the request of the
Office of the Controller of the Currency, the Office of Thrift Supervision,
the
FDIC, and any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the
documentation regarding the Mortgage Loans required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans required by applicable laws and regulations will be provided
to such Certificateholder, the Trustee and to any Person identified to the
Servicer as a prospective transferee of a Certificate subject to the execution
of a confidentiality agreement in form and substance satisfactory to the
servicer, upon reasonable request during normal business hours at the offices
of
the Servicer designated by it at the expense of the Person requesting such
access. Nothing in this Section 3.22 shall derogate from the obligation of
any
such party to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of any such party to provide access
as
provided in this Section as a result of such obligation shall not constitute
a
breach of this Section 3.22.
The
Servicer agrees to fully furnish, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information
(e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Servicer, on a monthly basis.
SECTION
3.24 Title,
Management and Disposition of REO Property.
(a) In
the
event that title to an REO Property is acquired in foreclosure or by deed in
lieu of foreclosure, the deed or certificate of sale shall be taken (pursuant
to
a limited power of attorney to be provided by the Trustee to the Servicer)
in
the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Trustee shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Trustee. The Trustee’s name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity.
The
Servicer shall ensure that the title to such REO Property references this
Agreement and the Trustee’s capacity hereunder. The Servicer, on behalf of the
Trust Fund, shall either sell any REO Property before the close of the third
taxable year following the year the Trust Fund acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code or request from the
Internal Revenue Service, no later than 60 days before the day on which the
above three-year grace period would otherwise expire, an extension of the above
three-year grace period, unless the Servicer shall have delivered to the Trustee
and the Depositor an Opinion of Counsel, addressed to the Trustee and the
Depositor, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of the third taxable year after its acquisition will
not
result in the imposition on the Trust Fund of taxes on “prohibited transactions”
thereof, as defined in Section 860F of the Code, or cause any Trust REMIC to
fail to qualify as a REMIC under Federal law at any time that any Certificates
are outstanding. The Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to
fail
to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by any Trust REMIC of any “income from
non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code,
or any “net income from foreclosure property” which is subject to taxation under
the REMIC Provisions.
(b) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain with respect to REO Properties
an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve as the
REO
Account, subject to separate ledgers for each REO Property. The Servicer shall
be entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period as the Servicer deems
to
be in the best interests of Certificateholders. In connection therewith, the
Servicer shall deposit, or cause to be deposited in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than two Business Days after
the Servicer’s receipt thereof, and shall thereafter deposit in the REO Account,
in no event more than one Business Day after the deposit of such funds into
the
clearing account, all revenues received by it with respect to an REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without
limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (1) through
(3)
above with respect to such REO Property, the Servicer shall advance from its
own
funds such amount as is necessary for such purposes if, but only if, the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, none of the Servicer or the Trustee shall:
(i) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(ii) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel to the effect
that such action will not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the at any
time that it is held by the Trust Fund, in which case the Servicer may take
such
actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.24(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such
fees.
(d) In
addition to the withdrawals permitted under Section 3.24(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. Any income from the related REO Property
received during any calendar months prior to a Final Recovery Determination,
net
of any withdrawals made pursuant to Section 3.24(c) or this Section 3.24(d),
shall be withdrawn by the Servicer from each REO Account maintained by it and
remitted to the Trustee for deposit into the Distribution Account in accordance
with Section 3.10(d)(ii) on the Servicer Remittance Date relating to a Final
Recovery Determination with respect to such Mortgage Loan, for distribution
on
the related Distribution Date in accordance with Section 4.01.
(e) Subject
to the time constraints set forth in Section 3.24(a), each REO Disposition
shall
be carried out by the Servicer at such price and upon such terms and conditions
as the Servicer shall deem necessary or advisable, as shall be normal and usual
in its general servicing activities for similar properties.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
remitted to the Trustee for deposit in the Distribution Account in accordance
with Section 3.10(d)(ii) on the Servicer Remittance Date in the month following
the receipt thereof for distribution on the related Distribution Date in
accordance with Section 4.01. Any REO Disposition shall be for cash only (unless
changes in the REMIC Provisions made subsequent to the Startup Day allow a
sale
for other consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
SECTION
3.25 Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls.
The
Servicer shall deliver to the Trustee for deposit into the Distribution Account
on the Servicer Remittance Date from its own funds (or from a Sub-Servicer’s own
funds received by the Servicer in respect of Compensating Interest) an amount
equal to the lesser of (a) the amount, if any, by which the Prepayment Interest
Shortfall for the related Prepayment Period, and (b) the amount of the Servicing
Fee payable to the Servicer for such Distribution Date.
SECTION
3.26 Obligations
of the Servicer in Respect of Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Stated Principal Balances that were made by the Servicer
in
a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trustee for deposit in the Distribution Account
from its own funds the amount of any such shortfall and shall indemnify and
hold
harmless the Trust Fund, the Trustee, the Depositor and any successor servicer
in respect of any such liability. Such indemnities shall survive the termination
or discharge of this Agreement. If amounts paid by the Servicer with respect
to
any Mortgage Loan pursuant to this Section 3.26 are subsequently recovered
from
the related Mortgagor, the Servicer shall be permitted to reimburse itself
for
such amounts paid by it pursuant to this Section 3.26 from such
recoveries.
SECTION
3.27 PMI
Policies; Claims Under the PMI Policies.
Notwithstanding
anything to the contrary elsewhere in this Agreement, the Servicer shall not
take any action with respect to a PMI Mortgage Loan that could result in denial
of coverage under the PMI Policy. The Servicer shall notify the PMI Insurer
that
the Trustee, on behalf of the Certificateholders, is the Insured, as that term
is defined in the PMI Policy, of each PMI Mortgage Loan. The Servicer shall,
on
behalf of the Trustee, prepare and file on a timely basis with the PMI Insurer,
all claims which may be made under the PMI Policy with respect to the PMI
Mortgage Loans. Copies of any such claims will be provided to the Trustee as
reasonably requested. Consistent with all rights and obligations hereunder,
the
Servicer shall take all actions required under the PMI Policy as a condition
to
the payment of any such claim. Any amount received from the PMI Insurer with
respect to any such PMI Mortgage Loan shall be deposited by the Servicer into
the Collection Account in accordance with Section 3.10. The Trustee shall
withdraw from the Distribution Account on each Distribution Date and pay to
the
PMI Insurer the PMI Insurer Fee in accordance with this Agreement.
SECTION
3.28 Advance
Facility
(a) Either
(i) the Servicer or (ii) the Trustee, on behalf of the Trust Fund, with the
consent of and at the direction of the Servicer, is hereby authorized to enter
into a facility (an “Advance Facility”) with any Person which provides that such
Person (an “Advancing Person”) may fund Advances and/or Servicing Advances to
the Trust Fund under this Agreement, although no such facility shall reduce
or
otherwise affect the Servicer’s obligation to fund such Advances and/or
Servicing Advances. If the Servicer enters into such an Advance Facility
pursuant to this Section 3.28, upon reasonable request of the Advancing Person,
the Trustee shall execute a letter of acknowledgment, confirming its receipt
of
notice of the existence of such Advance Facility. If the Trustee enters into
such an Advance Facility pursuant to this Section 3.28, the Servicer shall
also
be a party to such Advance Facility. To the extent that an Advancing Person
funds any Advance or any Servicing Advance and provides the Trustee with notice
acknowledged by the Servicer that such Advancing Person is entitled to
reimbursement, such Advancing Person shall be entitled to receive reimbursement
pursuant to this Agreement for such amount to the extent provided in Section
3.28(b). Such notice from the Advancing Person must specify the amount of the
reimbursement, the Section of this Agreement that permits the applicable Advance
or Servicing Advance to be reimbursed and the section(s) of the Advance Facility
that entitle the Advancing Person to request reimbursement from the Trustee,
rather than the Servicer, and include the Servicer’s acknowledgment thereto or
proof of an Event of Default under the Advance Facility. The Trustee shall
have
no duty or liability with respect to any calculation of any reimbursement to
be
paid to an Advancing Person and shall be entitled to rely without independent
investigation on the Advancing Person’s notice provided pursuant to this Section
3.28. An Advancing Person whose obligations hereunder are limited to the funding
of Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Servicer or a Sub-Servicer pursuant to Section 3.02 hereof
and will not be deemed to be a Sub-Servicer under this Agreement.
(b) If
an
advancing facility is entered into, then the Servicer shall not be permitted
to
reimburse itself therefor under Section 3.11(a)(ii), Section 3.11(a)(iii) and
Section 3.11(a)(vi) prior to the remittance to the Trust Fund, but instead
the
Servicer shall include such amounts in the applicable remittance to the Trustee
made pursuant to Section 3.11(a). The Trustee is hereby authorized to pay to
the
Advancing Person, reimbursements for Advances and Servicing Advances from the
Distribution Account to the same extent the Servicer would have been permitted
to reimburse itself for such Advances and/or Servicing Advances in accordance
with Section 3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi), as
the
case may be, had the Servicer itself funded such Advance or Servicing Advance.
The Trustee is hereby authorized to pay directly to the Advancing Person such
portion of the Servicing Fee as the parties to any advancing facility agree
in
writing.
(c) All
Advances and Servicing Advances made pursuant to the terms of this Agreement
shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO)
basis.
Any
amendment to this Section 3.28 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.28, including amendments to add provisions
relating to a successor servicer, may be entered into by the Trustee and the
Servicer without the consent of any Certificateholder, notwithstanding anything
to the contrary in this Agreement.
SECTION
3.29 [Reserved].
SECTION
3.30 Solicitations.
From
and
after the Closing Date, the Servicer agrees that it will not take any
action or permit or cause any action to be taken by any of its agents and
Affiliates, or by any independent
contractors or independent mortgage brokerage companies on the Servicer's
behalf,
to personally, by telephone, mail or electronic mail, solicit the Mortgagor
under any Mortgage
Loan for the purpose of refinancing such Mortgage Loan; provided, that the
Servicer
may solicit any Mortgagor for whom the Servicer has received a request for
verification
of mortgage, a request for demand for payoff, a mortgagor initiated written
or
verbal communication
indicating a desire to prepay the related Mortgage Loan, another mortgage
company
has pulled a credit report on the mortgagor or the mortgagor initiates a title
search; provided
further, it is understood and agreed that promotions undertaken by the
Servicer
or any of its Affiliates which (i) concern optional insurance products or other
additional products or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor. Furthermore, the Servicer shall be permitted to include in
its
monthly statements to borrowers
or otherwise, statements regarding the availability of the Servicer's counseling
services
with respect to refinancing mortgage loans.
ARTICLE
IV
FLOW
OF
FUNDS
SECTION
4.01 Distributions.
(a) On
each
Distribution Date, the Trustee shall pay the Credit Risk Manager Fee to the
Credit Risk Manager and shall then withdraw from the Distribution Account that
portion of Available Funds for such Distribution Date consisting of the Interest
Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Interest Remittance Amount remaining for such
Distribution Date:
(i) concurrently,
to the Holders of the Class A Certificates, on a pro
rata basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for such
Certificates;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates and the Class M-10 Certificates, in
that order, in an amount equal to the Monthly Interest Distributable Amount
for
each such Class.
(b) (I)On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which
a
Trigger Event is in effect, distributions in respect of principal to the extent
of the Principal Distribution Amount shall be made in the following amounts
and
order of priority:
(i) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), until the Certificate Principal Balances thereof
have been reduced to zero; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates and the Class M-10 Certificates, in
that order, in each case, until the Certificate Principal Balances thereof
have
been reduced to zero.
(II) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Principal Distribution Amount shall be made in the following amounts and
order of priority:
(i) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), the Senior Principal Distribution Amount until
the Certificate Principal Balances thereof have been reduced to
zero;
(ii) to
the
Holders of the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(v) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ix) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(x) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(xi) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Class A Certificates, all principal distributions will be
distributed sequentially, first, to the Holders of the Class A-1 Certificates,
until the Certificate Principal Balance of the Class A-1 Certificates has been
reduced to zero; second, to the Holders of the Class A-2 Certificates, until
the
Certificate Principal Balance of the Class A-2 Certificates has been reduced
to
zero; third, to the Holders of the Class A-3 Certificates until the Certificate
Principal Balance of the Class A-3 Certificates has been reduced to zero and
fourth, to the Holders of the Class A-4 Certificates until the Certificate
Principal Balance of the Class A-4 Certificates has been reduced to zero;
provided, however, on any Distribution Date on which the aggregate Certificate
Principal Balance of the Subordinate Certificates has been reduced to zero,
all
principal distributions will be distributed concurrently, to the Holders of
the
Class A Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such class.
(c) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, distributable to such Holders as part of the Principal
Distribution Amount as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates and the Class M-10 Certificates, in
that order, first, up to the Unpaid Interest Shortfall Amount for each such
Class and second, up to the Allocated Realized Loss Amount for each such
Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the aggregate of any Net WAC Rate
Carryover Amounts for the Floating Rate Certificates which exceed the amounts,
if any, received under the Basis Risk Cap Agreement;
(iv) to
the
Supplemental Interest Trust Trustee for payment to the Swap Provider, any Swap
Termination Payments resulting from a Swap Provider Trigger Event;
(v) to
the
Holders of the Class C Certificates, (a) the Monthly Interest Distributable
Amount for such Distribution Date and any Overcollateralization Release Amount
for such Distribution Date and (b) on any Distribution Date on which the
Certificate Principal Balances of the Floating Rate Certificates have been
reduced to zero, any remaining amounts in reduction of the Certificate Principal
Balance of the Class C Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
Class R-4 Interest).
(d) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trustee shall withdraw from the Net WAC Rate Carryover Reserve
Account, to the extent of amounts remaining on deposit therein, the aggregate
of
any Net WAC Rate Carryover Amounts for such Distribution Date and distribute
such amount in the following order of priority:
(i) concurrently,
to each Class of Class A Certificates, the related Basis Risk Cap Amount, from
payments made under the Basis Risk Cap Agreement, in each case up to a maximum
amount equal to the related Net WAC Rate Carryover Amount for such Distribution
Date;
(ii) sequentially,
the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates, the
Class M-9 Certificates and the Class M-10 Certificates, in that order, the
related Basis Risk Cap Amount, from payments made under the Basis Risk Cap
Agreement, in each case up to a maximum amount equal to the related Net WAC
Rate
Carryover Amount for such Distribution Date;
(iii) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover Amount
remaining undistributed pursuant to clause (i) above, on a pro
rata
basis
based on such respective remaining Net WAC Rate Carryover Amounts;
and
(iv) sequentially,
to the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates, the
Class M-9 Certificates and the Class M-10 Certificates, in that order, the
related Net WAC Rate Carryover Amount remaining undistributed pursuant to clause
(ii) above.
(e) In
accordance with the first sentence of Section 4.10(b), on or before each
Distribution Date, Net Swap Payments (whether payable to the Swap Provider
or to
the Supplemental Interest Trust Trustee), any Swap Termination Payment owed
to
the Swap Provider not resulting from a Swap Provider Trigger Event pursuant
to
the Interest Rate Swap Agreement and any Swap Termination Payments owed to
the
Supplemental Interest Trust Trustee will be deposited by the Supplemental
Interest Trust Trustee into the Swap Account. On each Distribution Date, the
Trustee shall withdraw from amounts on deposit in the Swap Account (other than
amounts representing Swap Termination Payments received by the Supplemental
Interest Trust Trustee or Net Swap Payments received by the Supplemental
Interest Trust Trustee) prior to any distribution to any Certificates and pay
as
follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap Agreement
and
to
the extent not paid by the Trustee (in its capacity as Supplemental Interest
Trust Trustee) from any upfront payment received pursuant to any replacement
interest rate swap agreement;
On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trustee shall distribute the amount
on
deposit in the Swap Account as follows:
(i) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class M-1 Certificates,
Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates and Class M-10 Certificates, in that order,
the related Monthly Interest Distributable Amount and Unpaid Interest Shortfall
Amount, to the extent remaining undistributed;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, distributable to such Holders as part of the Principal
Distribution Amount;
(iv) sequentially
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates and Class
M-10
Certificates,
in
that
order, in each case up to the related Allocated Realized Loss Amount related
to
such Certificates for such Distribution Date remaining
undistributed;
(v) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(vi) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates and Class
M-10
Certificates, in that order, the related Net WAC Rate Carryover Amount, to
the
extent remaining undistributed; and
(vii) any
remaining amounts to the Holders of the Class C Certificates.
Notwithstanding
any of the foregoing, the aggregate amount distributed under Section
4.01(e)(iii) above on such Distribution Date, when added to the cumulative
amount distributed under Section 4.01(e)(iii) above on all prior Distribution
Dates, will not be permitted to exceed the cumulative amount of Realized Losses
incurred on the Mortgage Loans since the Cut-off Date through the last day
of
the Prepayment Period (reduced by the aggregate amount of Subsequent Recoveries
received since the Cut-off date through the last day of the Prepayment Period).
Any amounts that would otherwise be distributable from the Supplemental Interest
Trust on any Distribution Date under Section 4.01(e)(iii) above, but for the
foregoing proviso, will be retained in the Supplemental Interest Trust and
will
be included in amounts available for distribution from the Supplemental Interest
Trust on the next succeeding Distribution Date, subject to the foregoing proviso
in the case of amounts to be distributed under Section 4.01(e) (iii)
above.
(f) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth above,
the Trustee shall distribute the amount on deposit in the Cap Account as
follows:
(i) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class M-1 Certificates,
Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates and Class M-10 Certificates, in that order,
the related Monthly Interest Distributable Amount and Unpaid Interest Shortfall
Amount, to the extent remaining undistributed;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Principal Distribution Amount;
(iv) sequentially
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates and Class
M-10
Certificates, in that order, in each case up to the related Allocated Realized
Loss Amount related to such Certificates for such Distribution Date remaining
undistributed;
(v) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are made
from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining
undistributed;
(vi) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates and Class
M-10
Certificates, in that order, the related Net WAC Rate Carryover Amount, to
the
extent remaining undistributed; and
(vii) any
remaining amounts to the Holders of the Class C Certificates.
(g) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and the Servicer
Prepayment Charge Payment Amounts paid by the Servicer during the related
Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trustee to the Holders of the Class P Certificates and shall
not be available for distribution to the Holders of any other Class of
Certificates. The payment of the foregoing amounts to the Holders of the Class
P
Certificates shall not reduce the Certificate Principal Balances thereof.
(h) On
each
Distribution Date, all amounts representing income and gain realized from the
investment of funds deposited in the Distribution Account during the Float
Period, will be withdrawn from the Distribution Account and distributed by
the
Trustee to the Holders of the Class FL Certificates and shall not be available
for distribution to the Holders of any other Class of Certificates. The payment
of the foregoing amounts to the Holders of the Class FL Certificates shall
not
reduce the Certificate Principal Balances thereof.
(i) The
Trustee 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 respecting the final distribution), in the case of
Certificateholders of the Regular 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 shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(j) 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 Trustee, the Depositor or the Servicer shall have
any
responsibility therefor except as otherwise provided by applicable
law.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Collection Account pursuant
to Section 3.10 shall be applied to increase the Certificate Principal Balance
of the Class of Certificates with the Highest Priority up to the extent of
such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. An amount equal to the amount of any remaining Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the next Highest Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. Holders of such Certificates will not be entitled to any
distribution in respect of interest on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied to the Certificate Principal Balance
of each Certificate of such Class in accordance with its respective Percentage
Interest.
(k) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trustee determines that the Residual Certificates are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution but shall make such distribution in accordance with the terms
of
this Agreement until this Agreement is amended as specified in the following
sentence. Upon such notification, the Depositor will request an amendment to
the
Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s), hereby agree to any such amendment and no
further consent shall be necessary, notwithstanding anything to the contrary
in
Section 11.01 of this Pooling and Servicing Agreement; provided, however, that
such amendment shall otherwise comply with Section 11.01 hereof.
SECTION
4.02 Net
WAC
Rate Carryover Reserve Account.
No
later
than the Closing Date, the Trustee shall establish and maintain with itself
a
separate, segregated trust account titled, “Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for
registered Holders of Soundview Mortgage Loan Trust 2007-NS1, Asset-Backed
Certificates, Series 2007-NS1.” All amounts deposited in the Net WAC Rate
Carryover Reserve Account shall be distributed to the Holders of the Floating
Rate Certificates in the manner set forth in Section 4.01(d).
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Floating Rate Certificates (after taking into account the remaining
Initial Net WAC Rate Carryover Reserve Account Deposit), the Trustee has been
directed by the Class C Certificateholders to, and therefore will, deposit
into
the Net WAC Rate Carryover Reserve Account the amounts described in Section
4.01(c)(v), rather than distributing such amounts to the Class C
Certificateholders. In addition, any payments received by the Trustee under
the
Basis Risk Cap Agreement on each Distribution Date will be deposited into the
Net WAC Rate Carryover Reserve Account. On each such Distribution Date, the
Trustee shall hold all such amounts for the benefit of the Holders of the
Floating Rate Certificates, and will distribute such amounts to the Holders
of
the Floating Rate Certificates in the amounts and priorities set forth in
Section 4.01(d).
On
each
Distribution Date, any amounts remaining in the Net WAC Rate Carryover Reserve
Account (representing payments received by the Trustee under the Basis Risk
Cap
Agreement) after the payment of any Net WAC Rate Carryover Amounts on the
Floating Rate Certificates for such Distribution Date, shall be payable to
the
Trust as additional compensation. For so long as any Floating Rate Certificates
are beneficially owned by the Depositor or any of its Affiliates, the Depositor
shall refund or cause such Affiliate to refund any amounts paid to it under
the
Basis Risk Cap Agreement to the Trustee who shall, pursuant to the terms of
the
Basis Risk Cap Agreement, return such amount to the counterparty
thereunder.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership; provided, that the Trustee shall not be required
to
prepare and file partnership tax returns in respect of such partnership unless
it receives additional reasonable compensation for the preparation of such
filings, written notification recognizing the creation of a partnership
agreement or comparable documentation evidencing the partnership, if any. All
amounts deposited into the Net WAC Rate Carryover Reserve Account (other than
amounts received under the Basis Risk Cap Agreement) shall be treated as amounts
distributed by REMIC 4 to the Holder of the Class C Interest and by REMIC 4
to
the Holder of the Class C Certificates. The Net WAC Rate Carryover Reserve
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). Upon the termination of the Trust, or the
payment in full of the Floating Rate Certificates, all amounts remaining on
deposit in the Net WAC Rate Carryover Reserve Account will be released by the
Trust and distributed to the Holders of the Class C Certificates or their
designee. The Net WAC Rate Carryover Reserve Account will be part of the Trust
but not part of any REMIC and any payments to the Holders of the Floating Rate
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Net
WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount rather
than distributing such amounts to the Class C Certificateholders. By accepting
a
Class C Certificate, each Class C Certificateholder further agrees that such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders of the
Floating Rate Certificates to receive payments from the Net WAC Rate Carryover
Reserve Account in respect of any Net WAC Cap Carry Forward Amounts may have
more than a de
minimis
value.
SECTION
4.03 Statements.
(a) On
each
Distribution Date, based, as applicable, on information provided to the Trustee
by the Servicer, the Trustee shall prepare and make available to each Holder
of
the Regular Certificates, the Credit Risk Manager, the Servicer and the Rating
Agencies, a statement as to the distributions made on such Distribution
Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates, separately identified, allocable to principal
and
the amount of the distribution made to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount as of such Distribution
Date
and the Excess Overcollateralized Amount for the Mortgage Pool for such
Distribution Date;
(iv) the
fees
and expenses of the Trust Fund accrued and paid on such Distribution Date and
to
whom such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
Pool
Balance at the Close of Business at the end of the related Due
Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans that
were
(A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and
REO
Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2)
60
to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings
have
been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3)
90 or
more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89
days
and (3) 90 or more days, in each case as of the Close of Business on the last
day of the calendar month preceding such Distribution Date and (D) REO
Properties, as well as the aggregate principal balance of Mortgage Loans that
were liquidated and the net proceeds resulting therefrom;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as of
the
Close of Business of the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period, separately indicating Principal Prepayments in full and Principal
Prepayments in part;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and the aggregate amount of
Realized Losses incurred since the Closing Date, which will include the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
Certificate Principal Balance of each Class of Floating Rate Certificates and
the Class C Certificates, before and after giving effect to the distributions
made on such Distribution Date;
(xiv) the
Monthly Interest Distributable Amount in respect of the Floating Rate
Certificates and the Class C Certificates for such Distribution Date and the
Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate
Certificates for such Distribution Date;
(xv) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to Section
3.24;
(xvi) the
Credit Enhancement Percentage for such Distribution Date;
(xvii) the
Net
WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such
Distribution Date and the amount remaining unpaid after reimbursements therefor
on such Distribution Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage
for such Distribution Date and the Realized Loss Percentage for such
Distribution Date;
(xix) the
total
cashflows received and the general sources thereof (including
amounts received from the Supplemental Interest Trust Trustee under the Interest
Rate Swap Agreement, from the Cap Trustee under the Interest Rate Cap Agreement
and under the Basis Risk Cap Agreement);
(xx) the
respective Pass-Through Rates applicable to the Floating Rate Certificates
and
the Class C Certificates for such Distribution Date and the Pass-Through Rate
applicable to the Floating Rate Certificates for the immediately succeeding
Distribution Date;
(xxi) payments,
if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap
Agreement and the amount distributed to the Floating Rate Certificates from
such
payments;
(xxii) the
amount of any Net Swap Payments or Swap Termination Payments paid to the Swap
Provider;
(xxiii) the
applicable Record Date, Accrual Period and any other applicable determination
dates for calculating distributions for such Distribution Date;
(xxiv) the
amount of income and gain realized from the investment of funds deposited in
the
Distribution Account during the Float Period for such Distribution
Date;
(xxv) to
the
extent provided by the Servicer (A) the amount of payments received from the
Servicer related to claims under each PMI Policy during the related Prepayment
Period (and the number of Mortgage Loans to which such payments related) and
(B)
the cumulative amount of payments received related to claims under each PMI
Policy since the Closing Date (and the number of Mortgage Loans to which such
payments related); and
(xxvi) to
the
extent provided by the Servicer (A) the dollar amount of claims made under
each
PMI Policy that were denied (as identified by the Servicer) during the
Prepayment Period (and the number of Mortgage Loans to which such denials
related) and (B) the dollar amount of the cumulative claims made under each
PMI
Policy that were denied since the Closing Date (and the number of Mortgage
Loans
to which such denials related).
The
Trustee will make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the NIMS Insurer and the Rating Agencies via the
Trustee’s internet website. The Trustee’s internet website shall initially be
located at “xxxxx://xxx.xxx.xx.xxx/xxxx”. Assistance in using the website can be
obtained by calling the Trustee’s customer service desk at (000) 000-0000.
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 Trustee shall have the right to change
the
way such statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any
such
changes. As a condition to access to the Trustee’s internet website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee will
not be liable for the dissemination of information in accordance with this
Agreement. The Trustee shall also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party
thereto).
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.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined by the Trustee from information provided by the Servicer
and
reported by the Trustee based on the OTS methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment
due on a Due Date if such Monthly Payment is not made by the close of business
on the Mortgage Loan's next succeeding Due Date, and a Mortgage Loan would
be
more than 30-days Delinquent with respect to such Monthly Payment if such
Monthly Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date. The Servicer hereby represents and warrants to
the
Depositor that it is not subject to any delinquency recognition policy
established by its safety and soundness regulators.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
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) and (ii) above, aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished by the Trustee to
Certificateholders pursuant to any requirements of the Code as are in force
from
time to time.
(c) On
each
Distribution Date, the Trustee shall make available to the Residual
Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
deliver to each Person who at any time during the calendar year was a Residual
Certificateholder, if requested in writing by such Person, such information
as
is reasonably necessary to provide to such Person a statement containing the
information provided pursuant to the previous paragraph aggregated for such
calendar year or applicable portion thereof during which such Person was a
Residual Certificateholder. Such obligation of the Trustee shall be deemed
to
have been satisfied to the extent that substantially comparable information
shall be prepared and furnished to Certificateholders by the Trustee pursuant
to
any requirements of the Code as from time to time in force.
SECTION
4.04 Remittance
Reports; Advances.
(a) On
the
2nd Business Day following each Determination Date, the Servicer shall furnish
to the Trustee a monthly remittance advice (which together with any supplemental
reports is known as the “Remittance Report”). Such Remittance Report shall be in
a format mutually agreed to between the Servicer and the Trustee. The Trustee
shall not be responsible to recompute, recalculate or verify any information
provided to it by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.04(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans (other than with respect to any REO
Property as described in clause (ii) below or a Balloon Mortgage Loan as
described below), which Monthly Payments were delinquent on a contractual basis
as of the Close of Business on the related Determination Date and (ii) with
respect to each REO Property, which REO Property was acquired during or prior
to
the related Due Period and as to which REO Property an REO Disposition did
not
occur during the related Due Period, an amount equal to the excess, if any,
of
the REO Imputed Interest on such REO Property for the most recently ended
calendar month, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.24 for distribution on such
Distribution Date. For purposes of the preceding sentence, the Monthly Payment
on each Balloon Mortgage Loan with a delinquent Balloon Payment is equal to
the
assumed monthly payment that would have been due on the related Due Date based
on the original principal amortization schedule for such Balloon Mortgage Loan.
In addition, the Servicer shall not be required to advance any Relief Act
Interest Shortfalls or to cover Prepayment Interest Shortfalls in excess of
its
obligations under Section 3.25.
On
or
before the Servicer Remittance Date, the Servicer shall remit in immediately
available funds to the Trustee for deposit in the Distribution Account an amount
equal to the aggregate amount of Advances, if any, to be made in respect of
the
Mortgage Loans and REO Properties for the related Distribution Date either
(i)
from its own funds or (ii) from the Collection Account, to the extent of funds
held therein for future distribution (in which case it will cause to be made
an
appropriate entry in the records of Collection Account that amounts held for
future distribution have been, as permitted by this Section 4.04, used by the
Servicer in discharge of any such Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Advances to be
made
by the Servicer with respect to the Mortgage Loans and REO Properties. Any
amounts held for future distribution used by the Servicer to make an Advance
as
permitted in the preceding sentence shall be appropriately reflected in the
Servicer’s records and replaced by the Servicer by deposit in the Collection
Account on or before any future Servicer Remittance Date to the extent that
the
Available Funds for the related Distribution Date (determined without regard
to
Advances to be made on the Servicer Remittance Date) shall be less than the
total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.01 on such Distribution Date if such amounts held for
future distributions had not been so used to make Advances. The Trustee will
provide notice to the Servicer by telecopy by the Close of Business on any
Servicer Remittance Date in the event that the amount remitted by the Servicer
to the Trustee on such date is less than the Advances required to be made by
the
Servicer for the related Distribution Date, as set forth in the related
Remittance Report.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below, and, with
respect to any Mortgage Loan, shall continue until the Mortgage Loan is paid
in
full or until all Liquidation Proceeds thereon have been recovered, or a Final
Recovery Determination has been made thereon.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by a certification of a Servicing Officer delivered
to the Trustee (whereupon, upon receipt of such certification, the Trustee
shall
forward a copy of such certification to the Depositor, the Trustee and the
Credit Risk Manager). Notwithstanding the foregoing, if following the
application of Liquidation Proceeds on any Mortgage Loan that was the subject
of
a Final Recovery Determination, any Servicing Advance with respect to such
Mortgage Loan shall remain unreimbursed to the Servicer, then without limiting
the provisions of Section 3.11(a), a certification of a Servicing Officer
regarding such Nonrecoverable Advance shall not be required to be delivered
by
the Servicer to the Trustee.
SECTION
4.05 Commission
Reporting.
(a) The
Trustee and the Servicer shall reasonably cooperate with the Depositor in
connection with the Trust’s satisfying the reporting requirements under the
Exchange Act.
(b) (i)
Within 12 calendar days after each Distribution Date, the Trustee shall, in
accordance with industry standards, file with the Commission via the Electronic
Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form
10-D, signed by the Depositor, with a copy of the monthly statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date.
Any disclosure in addition to the monthly statement required to be included
on
the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and
prepared by the entity that is indicated in Exhibit T as the responsible party
for providing that information, if other than the Trustee, and the Trustee
will
have no duty or liability to verify the accuracy or sufficiency of any such
Additional Form 10-D Disclosure and the Trustee shall have no liability with
respect to any failure to properly prepare or file such Form 10-D resulting
from
or relating to the Trustee’s inability or failure to obtain any information in a
timely manner from the party responsible for delivery of such Additional Form
10-D Disclosure.
Within
3
calendar days after the related Distribution Date, each entity that is indicated
in Exhibit T as the responsible party for providing Additional Form 10-D
Disclosure shall be required to provide to the Trustee and the Depositor, to
the
extent known, clearly identifying which item of Form 10-D the information
relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee
shall compile the information provided to it, prepare the Form 10-D and forward
the Form 10-D to the Depositor for verification. The Depositor will approve,
as
to form and substance, or disapprove, as the case may be, the Form 10-D. No
later than three Business Days prior to the 10th
calendar
day after the related Distribution Date, an officer of the Depositor shall
sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. The Indenture Trustee shall have no liability with respect to any
failure to properly file any Form 10-D resulting from or relating to the
Depositor’s failure to timely comply with the provisions of this
section.
(ii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare
and file any Form 8-K, as required by the Exchange Act, in addition to the
initial Form 8-K in connection with the issuance of the Certificates. Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be
determined and prepared by the entity that is indicated in Exhibit T as the
responsible party for providing that information.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the end of business on the second Business Day after the occurrence
of a Reportable Event, the entity that is indicated in Exhibit T as the
responsible party for providing Form 8-K Disclosure Information shall be
required to provide to the Depositor, to the extent known, the form and
substance of any Form 8-K Disclosure Information, if applicable. The Depositor
shall compile the information provided to it, and prepare and file the Form
8-K,
which shall be signed by an officer of the Depositor.
(iii) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On
or
before (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, on or before March 15 of each year thereafter, the
Servicer shall provide the Trustee with an Annual Compliance Statement, together
with a copy of the Assessment of Compliance and Attestation Report to be
delivered by the Servicer pursuant to Sections 3.20 and 3.21 (including with
respect to any Sub-Servicer or any subcontractor, if required to be filed).
Prior to (x) March 31, 2008 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, March 31 of each year thereafter, the Trustee shall
file
a Form 10-K, in substance as required by applicable law or applicable Securities
and Exchange Commission staff’s interpretations and conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include the
Assessment of Compliance, Attestation Report, Annual Compliance Statements
and
other documentation provided by the Servicer pursuant to Sections 3.20 and
3.21
(including with respect to any Sub-Servicer or subcontractor, if required to
be
filed) and Section 3.21 with respect to the Trustee, and the Form 10-K
certification in the form attached hereto as Exhibit N-1 (the “Certification”)
signed by the senior officer of the Depositor in charge of securitization.
The
Trustee shall receive the items described in the preceding sentence no later
than March 15 of each calendar year prior to the filing deadline for the Form
10-K.
Any
disclosure or information in addition to that described in the preceding
paragraph that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by the entity that is indicated in
Exhibit T as the responsible party for providing that information, if other
than
the Trustee, and the Trustee will have no duty or liability to verify the
accuracy or sufficiency of any such Additional Form 10-K
Disclosure.
If
information, data and exhibits to be included in the Form 10-K are not so timely
delivered, the Trustee shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Trustee. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to
the
Trustee’s inability or failure to timely obtain any information from any other
party.
Prior
to
(x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 1 of each year thereafter, each entity that
is
indicated in Exhibit T as the responsible party for providing Additional Form
10-K Disclosure shall be required to provide to the Trustee and the Depositor,
to the extent known, the form and substance of any Additional Form 10-K
Disclosure Information, if applicable. The Trustee shall compile the information
provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor
for verification. The Depositor will approve, as to form and substance, or
disapprove, as the case may be, the Form 10-K by no later than March 25 of
the
relevant year (or the immediately preceding Business Day if March 25 is not
a
Business Day), an officer of the Depositor shall sign the Form 10-K and return
an electronic or fax copy of such signed Form 10-K (with an original executed
hard copy to follow by overnight mail) to the Trustee.
The
Servicer shall be responsible for determining the pool concentration applicable
to any Sub-Servicer to which the Servicer delegated any of its responsibilities
with respect to the Mortgage Loans at any time, for purposes of disclosure
as
required by Items 1117 and 1119 of Regulation AB. The Trustee will provide
electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge
to any Certificateholder upon request. Any expenses incurred by the Trustee
in
connection with the previous sentence shall be reimbursable to the Trustee
out
of the Trust Fund. The Trustee shall have no liability with respect to any
failure to properly file any Form 10-K resulting from or relating to the
Depositor’s failure to timely comply with the provisions of this
section.
The
Trustee shall sign a certification (in the form attached hereto as
Exhibit N-2) for the benefit of the Depositor and its officers, directors
and Affiliates in respect of items 1 through 3 of the Certification (provided,
however, that the Trustee shall not undertake an analysis of the Attestation
Report attached as an exhibit to the Form 10-K), and the Servicer shall sign
a
certification (the “Servicer Certification”) solely with respect to the Servicer
(in the form attached hereto as Exhibit N-3) for the benefit of the
Depositor, the Trustee and each Person, if any, who “controls” the Depositor or
the Trustee within the meaning of the Securities Act of 1933, as amended, and
their respective officers and directors. Each such certification shall be
delivered to the Depositor and the Trustee by March 15th
of each
year (or if not a Business Day, the immediately preceding Business Day). The
Certification attached hereto as Exhibit N-1 shall be delivered to the
Trustee by March 20th
for
filing on or prior to March 30th
of each
year (or if not a Business Day, the immediately preceding Business
Day).
(c) (A)
The
Trustee shall indemnify and hold harmless the Depositor, the Servicer and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the Trustee’s obligations under this Section 4.05 caused by
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Assessment of
Compliance delivered by the Trustee pursuant to Section 3.21, and (B) the
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (i) the failure of the Servicer to timely deliver the Servicer
Certification or (ii) any material misstatement or omission in the Statement
as
to Compliance delivered by the Servicer pursuant to Section 3.20, the Assessment
of Compliance delivered by the Servicer pursuant to Section 3.21 or the Servicer
Certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor, then (i) the Trustee agrees that
it
shall contribute to the amount paid or payable by the Depositor as a result
of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one
hand
and the Trustee on the other in connection with a breach of the Trustee’s
obligations under this Section 4.05 caused by the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) the Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor and
the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Trustee on the one hand and the Servicer
on the other in connection with the Servicer Certification and the related
obligations of the Servicer under this Section 4.05.
Upon
any
filing with the Securities and Exchange Commission, the Trustee shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information.
SECTION
4.06 [Reserved].
SECTION
4.07 [Reserved].
SECTION
4.08 Distributions
on the REMIC Regular Interests.
(a) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 1 to
REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(1) to
Holders of each of REMIC 1 Regular Interest I and REMIC 1 Regular Interest
I-1-A
through I-51-B, on a pro
rata
basis,
in an amount equal to (A) Uncertificated Accrued Interest for such REMIC 1
Regular Interests for such Distribution Date, plus (B) any amounts payable
in
respect thereof remaining unpaid from previous Distribution Dates;
(2) to
the
extent of amounts remaining after the distributions made pursuant to clause
(A)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular interests I-1-A through I-51-B starting with the lowest numerical
denomination until the Uncertificated Principal Balance of each such REMIC
1
Regular Interest is reduced to zero, provided that, for REMIC 1 Regular
Interests with the same numerical denomination, such payments of principal
shall
be allocated pro rata between such REMIC 1 Regular Interests, and second, to
the
extent of the Overcollateralization Release Amounts, to REMIC 1 Regular Interest
I-51-B until the Uncertificated Principal Balance of such REMIC 1 Regular
Interest is reduced to zero; and
(3) to
the
Holders of REMIC 1 Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 2 to
REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-2 Interest), as the case may be:
(1) first,
to
the Holders of REMIC 2 Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates;
(2) second,
to the extent of Available Funds, to Holders of REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2, REMIC 2 Regular
Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTZZ
and
REMIC 2 Regular Interest LTP, on a pro rata basis, in an amount equal to (A)
the
Uncertificated Accrued Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Accrued Interest in respect of REMIC 2 Regular
Interest LTZZ shall be reduced and deferred when the REMIC 2
Overcollateralization Amount is less than the REMIC 2 Overcollateralization
Target Amount, by the lesser of (x) the amount of such difference and (y) the
Maximum Uncertificated Accrued Interest Deferral Amount and such amount will
be
payable to the Holders of REMIC 2 Regular Interest LTA1, REMIC 2 Regular
Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest LTA4,
REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular
Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5,
REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular
Interest LTM8, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest LTM10,
in the same proportion as the Overcollateralization Deficiency Amount is
allocated to the Corresponding Certificates and the Uncertificated Principal
Balance of the REMIC 2 Regular Interest LTZZ shall be increased by such amount;
and
(3) third,
to
the Holders of REMIC 2 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC 2 Regular Interest LTAA and REMIC 2
Regular Interest LTP, until the Uncertificated Principal Balance of such
Uncertificated REMIC 2 Regular Interest is reduced to zero; provided, however,
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause;
(b) 2.00%
of
such remainder first, to the Holders of REMIC 2 Regular Interest LTA1, REMIC
2
Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest
LTA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTM10, of and in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal Balances of
such
REMIC 2 Regular Interests are reduced to zero, and second, to the Holders of
REMIC 2 Regular Interest LTZZ, until the Uncertificated Principal Balance of
such REMIC 2 Regular Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest).
SECTION
4.09 Allocation
of Realized Losses.
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trustee on each Distribution Date as follows: first, to
Net
Monthly Excess Cashflow; second, to
Net
Swap
Payments received under the Interest Rate Swap Agreement; third, to amounts
received under the Interest Rate Cap Agreement; fourth, to the Class C
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fifth, to the Class M-10 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; sixth, to the Class M-9 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
seventh, to the Class M-8 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; eighth, to the Class M-7 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; ninth,
to
the Class M-6 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; tenth, to the Class M-5 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eleventh, to
the
Class M-4 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; twelfth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; thirteenth, to the Class
M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero and fourteenth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses to
be
allocated to the Certificate Principal Balances of all Classes on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class C Certificates
shall be made first by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(c)(v). No allocations of any Realized Losses shall
be
made to the Certificate Principal Balances of the Class A Certificates or the
Class P Certificates.
(b) With
respect to the REMIC 1 Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated by the Trustee on each Distribution Date, first to
REMIC 1 Regular Interest I until the Uncertificated Principal Balance has been
reduced to zero, and second, to REMIC 1 Regular Interest I-1-A through REMIC
1
Regular Interest I-51-B, starting with the lowest numerical denomination until
such REMIC 1 Regular Interest has been reduced to zero, provided that, for
REMIC
1 Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated pro
rata
between
such REMIC 1 Regular Interests.
(c) (c)All
Realized Losses on the Mortgage Loans shall be deemed to have been allocated
in
the specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ
up to an aggregate amount equal to the REMIC 2 Interest Loss Allocation Amount,
98% and 2%, respectively; second, to the Uncertificated Principal Balances
of
REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an
aggregate amount equal to the REMIC 2 Principal Loss Allocation Amount, 98%
and
2%, respectively; third, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM10 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM9 has been reduced to zero; fourth,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM9 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM9 has been reduced to zero; fifth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM8 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM8 has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM7 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM7 has been reduced to zero; seventh,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM6 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM6 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM5 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM5 has been
reduced to zero; ninth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM4 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM4 has been reduced to zero; tenth, to
the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM3 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM3 has been reduced to zero; eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM2 has been
reduced to zero and twelfth, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM1 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM1 has been reduced to zero.
SECTION
4.10 Swap
Account.
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental Interest Trust Trustee. No later than the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain a separate,
segregated trust account to be held in the Supplemental Interest Trust, titled,
“Swap
Account, Deutsche Bank National Trust Company, as Supplemental Interest Trust
Trustee, in trust for the registered Certificateholders of Soundview Home Loan
Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1.”
Such
account shall be an Eligible Account and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant to
this
Agreement. Amounts therein shall be held uninvested.
(b) Prior
to
each Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account (i)
the
amount of any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds. For federal income tax purposes, any amounts paid to the Swap
Provider on each Distribution Date shall first be deemed paid to the Swap
Provider in respect of REMIC 6 Regular Interest SWAP IO to the extent of the
amount distributable on REMIC 6 Regular Interest SWAP IO on such Distribution
Date, and any remaining amount shall be deemed paid to the Swap Provider in
respect of a Class IO Distribution Amount (as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a partnership, provided,
that the Trustee shall not be required to prepare and file partnership tax
returns in respect of such partnership unless it receives additional reasonable
compensation for the preparation of such filings, written notification
recognizing the creation of a partnership agreement or comparable documentation
evidencing the partnership, if any. The Supplemental Interest Trust will be
an
“outside reserve fund” within the meaning of Treasury Regulation Section
1.860G-2(h).
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trustee shall treat the Holders of Certificates (other than the Class P, Class
C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 2 Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class
IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Rate, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of Certificates with an outstanding principal balance
to
the extent of such balance. In addition, pursuant to such notional principal
contract, the Holder of the Class C Certificates shall be treated as having
agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within
the
meaning of Code Section 860G(a)(1). However, any payment from the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) of a
Class
IO Distribution Amount shall be treated for tax purposes as having been received
by the Holders of such Certificates in respect of their interests in REMIC
4 and
as having been paid by such Holders pursuant to the notional principal contract.
Thus, each Certificate (other than the Class P and Class R Certificates) shall
be treated as representing not only ownership of Regular Interests in REMIC
2,
but also ownership of an interest in, and obligations with respect to, a
notional principal contract.
(f) For
federal tax return and information reporting, the right of the Holders of the
Floating Rate Certificates to receive payments from the Supplemental Interest
Trust in respect of any Net WAC Cap Carry Forward Amounts may have more than
a
de
minimis
value.
SECTION
4.11 Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of a Floating Rate Certificate is
deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. For
federal income tax purposes, the Trustee will account for payments to each
Floating Rate Certificates as follows: each Floating Rate Certificate will
be
treated as receiving their entire payment from REMIC 3 (regardless of any Swap
Termination Payment or obligation under the Interest Rate Swap Agreement) and
subsequently paying their portion of any Swap Termination Payment in respect
of
each such Class’ obligation under the Interest Rate Swap Agreement. In the event
that any such Class is resecuritized in a REMIC, the obligation under the
Interest Rate Swap Agreement to pay any such Swap Termination Payment (or any
shortfall in Swap Provider Fee), will be made by one or more of the REMIC
Regular Interests issued by the resecuritization REMIC subsequent to such REMIC
Regular Interest receiving its full payment from any such Floating Rate
Certificate.
The
REMIC
regular interest corresponding to a Floating Rate Certificate will be entitled
to receive interest and principal payments at the times and in the amounts
equal
to those made on the certificate to which it corresponds, except that (i) the
maximum interest rate of that REMIC regular interest will equal the Net WAC
Rate
computed for this purpose by limiting the Base Calculation Amount of the
Interest Rate Swap Agreement to the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) any Swap Termination Payment will be treated as being
payable solely from Net Monthly Excess Cashflow. As a result of the foregoing,
the amount of distributions and taxable income on the REMIC regular interest
corresponding to a Floating Rate Certificate may exceed the actual amount of
distributions on the Floating Rate Certificate.
SECTION
4.12 Cap
Account.
(a) No
later
than the Closing Date, the Trustee shall establish and maintain with itself,
a
separate, segregated trust account titled, “Cap Account, Deutsche Bank National
Trust Company, as Cap Trustee, in trust for the registered Certificateholders
of
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1.”
Such account shall be an Eligible Account and amounts therein shall be held
uninvested.
(b) On
each
Distribution Date, pursuant to the Cap Allocation Agreement, the Cap Trustee,
prior to any distribution to any Certificate, shall deposit into the Cap Account
amounts received pursuant to the Interest Rate Cap Agreement for distribution
in
accordance with Section 4.01(f) above.
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Cap Account be disregarded as an entity
separate from the Holder of the Class C Certificates unless and until the date
when either (a) there is more than one Class C Certificateholder or (b) any
Class of Certificates in addition to the Class C Certificates is recharacterized
as an equity interest in the Cap Account for federal income tax purposes, in
which case it is the intention of the parties hereto that, for federal and
state
income and state and local franchise tax purposes, the Cap Account be treated
as
a partnership. The
Cap
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). Upon the termination of the Trust Fund, or
the
payment in full of the Floating Rate Certificates, all amounts remaining on
deposit in the Cap Account shall be released by the Trust Fund and distributed
to the Class C Certificateholders or their designees. The Cap Account shall
be
part of the Trust Fund but not part of any Trust REMIC and any payments to
the
Holders of the Floating Rate Certificates of Net WAC Rate Carryover Amounts
will
not be payments with respect to a “regular interest” in a REMIC within the
meaning of Code Section 860(G)(a)(1).
(d) By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee is hereby directed, to deposit into the
Cap
Account the amounts described above on each Distribution Date.
For
federal income tax purposes, the right of the Floating Rate Certificates to
receive payments from the Cap Account may have more than a de
minimis
value.
SECTION
4.13 Collateral
Accounts
(a) The
Trustee is hereby directed to perform the obligations of the Custodian as
defined under the Basis Risk Cap Credit Support Annex (the “Basis Risk Cap
Custodian”). On or before the Closing Date, the Basis Risk Cap Custodian shall
establish a Basis Risk Cap Collateral Account. The Basis Risk Cap Collateral
Account shall be held in the name of the Basis Risk Cap Custodian in trust
for
the benefit of the Certificateholders. The Basis Risk Cap Collateral Account
must be an Eligible Account and shall be titled “Basis Risk Cap Collateral
Account, Deutsche Bank National Trust Company, as Basis Risk Cap Custodian
for
registered Certificateholders of Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates, Series 2007-NS1.”
(b) The
Basis
Risk Cap Custodian shall credit to Basis Risk Cap Collateral Account all
collateral (whether in the form of cash or securities) posted by the Basis
Risk
Cap Provider to secure the obligations of the Basis Risk Cap Provider in
accordance with the terms of the Basis Risk Cap Agreement. Except for investment
earnings, the Basis Risk Cap Provider shall not have any legal, equitable or
beneficial interest in the Basis Risk Cap Collateral Account other than in
accordance with this Agreement, the Basis Risk Cap Agreement and applicable
law.
The Basis Risk Cap Custodian shall maintain and apply all collateral and
earnings thereon on deposit in the Basis Risk Cap Collateral Account in
accordance with Basis Risk Cap Credit Support Annex.
(c) Cash
collateral posted by the Basis Risk Cap Provider in accordance with the Basis
Risk Cap Credit Support Annex shall be invested at the direction of the Basis
Risk Cap Provider in Permitted Investments in accordance with the requirements
of the Basis Risk Cap Credit Support Annex. All amounts earned on amounts on
deposit in the Basis Risk Cap Collateral Account (whether cash collateral or
securities) shall be for the account of and taxable to the Basis Risk Cap
Provider.
(d) Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Basis Risk Cap Agreement), with respect to the Basis Risk Cap Provider or upon
occurrence or designation of an Early Termination Date (as defined in the Basis
Risk Cap Agreement) as a result of any such Event of Default or Specified
Condition with respect to the Basis Risk Cap Provider, and, in either such
case,
unless the Basis Risk Cap Provider has paid in full all of its Obligations
(as
defined in the Basis Risk Cap Credit Support Annex) that are then due, then
any
collateral posted by the Basis Risk Cap Provider in accordance with the Basis
Risk Cap Credit Support Annex shall be applied to the payment of any Obligations
due to Party B (as defined in the Basis Risk Cap Agreement) in accordance with
the Basis Risk Cap Credit Support Annex. Any excess amounts held in such Basis
Risk Cap Collateral Account after payment of all amounts owing to Party B under
the Basis Risk Cap Agreement shall be withdrawn from the Basis Risk Cap
Collateral Account and paid to the Basis Risk Cap Provider in accordance with
the Basis Risk Cap Credit Support Annex.
(e) The
Trustee (in its capacity as Cap Trustee) is hereby directed to perform the
obligations of the Custodian as defined under the Interest Rate Cap Credit
Support Annex (the “Interest Rate Cap Custodian”). On or before the Closing
Date, the Interest Rate Cap Custodian shall establish a Interest Rate Cap
Collateral Account. The Interest Rate Cap Collateral Account shall be held
in
the name of the Interest Rate Cap Custodian in trust for the benefit of the
Certificateholders. The Interest Rate Cap Collateral Account must be an Eligible
Account and shall be titled “Interest Rate Cap Collateral Account, Deutsche Bank
National Trust Company, as Interest Rate Cap Custodian for registered
Certificateholders of Soundview Home Loan Trust 2007-NS1, Asset-Backed
Certificates, Series 2007-NS1.”
(f) The
Interest Rate Cap Custodian shall credit to the Interest Rate Cap Collateral
Account all collateral (whether in the form of cash or securities) posted by
the
Interest Rate Cap Provider to secure the obligations of the Interest Rate Cap
Provider in accordance with the terms of the Interest Rate Cap Agreement. Except
for investment earnings, the Interest Rate Cap Provider shall not have any
legal, equitable or beneficial interest in the Interest Rate Cap Collateral
Account other than in accordance with this Agreement, the Interest Rate Cap
Agreement and applicable law. The Interest Rate Cap Custodian shall maintain
and
apply all collateral and earnings thereon on deposit in the Interest Rate Cap
Collateral Account in accordance with Interest Rate Cap Credit Support
Annex.
(g) Cash
collateral posted by the Interest Rate Cap Provider in accordance with the
Interest Rate Cap Credit Support Annex shall be invested at the direction of
the
Interest Rate Cap Provider in Permitted Investments in accordance with the
requirements of the Interest Rate Cap Credit Support Annex. All amounts earned
on amounts on deposit in the Interest Rate Cap Collateral Account (whether
cash
collateral or securities) shall be for the account of and taxable to the
Interest Rate Cap Provider.
(h) Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Interest Rate Cap Agreement), with respect to the Interest Rate Cap Provider
or
upon occurrence or designation of an Early Termination Date (as defined in
the
Interest Rate Cap Agreement) as a result of any such Event of Default or
Specified Condition with respect to the Interest Rate Cap Provider, and, in
either such case, unless the Interest Rate Cap Provider has paid in full all
of
its Obligations (as defined in the Interest Rate Cap Credit Support Annex)
that
are then due, then any collateral posted by the Interest Rate Cap Provider
in
accordance with the Interest Rate Cap Credit Support Annex shall be applied
to
the payment of any Obligations due to Party B (as defined in the Interest Rate
Cap Agreement) in accordance with the Interest Rate Cap Credit Support Annex.
Any excess amounts held in such Interest Rate Cap Collateral Account after
payment of all amounts owing to Party B under the Interest Rate Cap Agreement
shall be withdrawn from the Interest Rate Cap Collateral Account and paid to
the
Interest Rate Cap Provider in accordance with the Interest Rate Cap Credit
Support Annex.
(i) The
Trustee (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to perform the obligations of the Custodian as defined under the Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap Collateral
Account shall be held in the name of the Swap Custodian in trust for the benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, Deutsche Bank National
Trust Company, as Swap Custodian for registered Certificateholders of Soundview
Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series
2007-NS1.”
(j) The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether in
the
form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the Interest
Rate Swap Agreement. Except for investment earnings, the Swap Provider shall
not
have any legal, equitable or beneficial interest in the Swap Collateral Account
other than in accordance with this Agreement, the Interest Rate Swap Agreement
and applicable law. The Swap Custodian shall maintain and apply all collateral
and earnings thereon on deposit in the Swap Collateral Account in accordance
with Swap Credit Support Annex.
(k) Cash
collateral posted by the Swap Provider in accordance with the Swap Credit
Support Annex shall be invested at the direction of the Swap Provider in
Permitted Investments in accordance with the requirements of the Swap Credit
Support Annex. All amounts earned on amounts on deposit in the Swap Collateral
Account (whether cash collateral or securities) shall be for the account of
and
taxable to the Swap Provider.
(l) Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Interest Rate Swap Agreement), with respect to the Interest Rate Swap Provider
or upon occurrence or designation of an Early Termination Date (as defined
in
the Interest Rate Swap Agreement) as a result of any such Event of Default
or
Specified Condition with respect to the Interest Rate Swap Provider, and, in
either such case, unless the Interest Rate Swap Provider has paid in full all
of
its Obligations (as defined in the Swap Credit Support Annex) that are then
due,
then any collateral posted by the Interest Rate Swap Provider in accordance
with
the Swap Credit Support Annex shall be applied to the payment of any Obligations
due to Party B (as defined in the Interest Rate Swap Agreement) in accordance
with the Interest Rate Swap Credit Support Annex. Any excess amounts held in
such Swap Collateral Account after payment of all amounts owing to Party B
under
the Interest Rate Swap Agreement shall be withdrawn from the Swap Collateral
Account and paid to the Swap Provider in accordance with the Swap Credit Support
Annex.
SECTION
4.14 Rights
and Obligations Under the Basis Risk Cap Agreement, the Interest Rate Cap
Agreement and the Interest Rate Swap Agreement.
(a) In
the
event that the Basis Risk Cap Provider fails to perform any of its obligations
under the Basis Risk Cap Agreement (including, without limitation, its
obligation to make any payment or transfer collateral), or breaches any of
its
representations and warranties thereunder, or in the event that any Event of
Default, Termination Event, or Additional Termination Event (each as defined
in
the Basis Risk Cap Agreement) occurs with respect to the Basis Risk Cap
Agreement, the Trustee shall, promptly following actual notice of such failure,
breach or event, notify the Depositor and send any notices and make any demands,
on behalf of the Trust, required to enforce the rights of the Trust under the
Basis Risk Cap Agreement.
(b) In
the
event that the Basis Risk Cap Provider’s obligations are guaranteed by a third
party under a guaranty relating to the Basis Risk Cap Agreement (such guaranty
the “Guaranty” and such third party the “Guarantor”), then to the extent that
the Basis Risk Cap Provider fails to make any payment by the close of business
on the day it is required to make payment under the terms of the Basis Risk
Cap
Agreement, the Trustee shall, promptly following actual notice of the Basis
Risk
Cap Provider’s failure to pay, demand that the Guarantor make any and all
payments (determined in accordance with the Basis Risk Cap Agreement) then
required to be made by the Guarantor pursuant to such Guaranty; provided, that
the Trustee shall in no event be liable for any failure or delay in the
performance by the Basis Risk Cap Provider or any Guarantor of its obligations
hereunder or pursuant to the Basis Risk Cap Agreement and the Guaranty, nor
for
any special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) in connection
therewith.
(c) Upon
an
early termination of the Basis Risk Cap Agreement other than in connection
with
the optional termination of the Trust, the Trustee, at the direction of the
Depositor, will use reasonable efforts to appoint a successor basis risk cap
provider to enter into a new basis risk cap agreement on terms substantially
similar to the Basis Risk Cap Agreement, with a successor basis risk cap
provider meeting all applicable eligibility requirements. If the Trustee
receives a termination payment from the Basis Risk Cap Provider in connection
with such early termination, the Trustee will apply such termination payment
to
any upfront payment required to appoint the successor basis risk cap provider.
If the Trustee is required to pay a termination payment to the Basis Risk Cap
Provider in connection with such early termination, the Trustee will apply
any
upfront payment received from the successor basis risk cap provider to pay
such
termination payment.
(d) If
the
Trustee is unable to appoint a successor basis risk cap provider within 30
days
of the early termination, then the Trustee will deposit any termination payment
received from the original Basis Risk Cap Provider into a separate, non-interest
bearing reserve account and will, on each subsequent Distribution Date, withdraw
from the amount then remaining on deposit in such reserve account, an amount
equal to the payment, if any, that would have been paid to the Trustee by the
original Basis Risk Cap Provider calculated in accordance with the terms of
the
original Basis Risk Cap Agreement, and distribute such amount in accordance
with
the terms of Section 4.01(d).
(e) Upon
an
early termination of the Basis Risk Cap Agreement in connection with the
optional termination of the Trust, if the Trustee receives a termination payment
from the Basis Risk Cap Provider, such termination payment will be distributed
in accordance with Section 4.01(d).
(f) In
the
event that the Interest Rate Cap Provider fails to perform any of its
obligations under the Interest Rate Cap Agreement (including, without
limitation, its obligation to make any payment or transfer collateral), or
breaches any of its representations and warranties thereunder, or in the event
that any Event of Default, Termination Event, or Additional Termination Event
(each as defined in the Interest Rate Cap Agreement) occurs with respect to
the
Interest Rate Cap Agreement, the Trustee (in its capacity as Cap Trustee) shall,
promptly following actual notice of such failure, breach or event, notify the
Depositor and send any notices and make any demands, on behalf of the Cap Trust,
required to enforce the rights of the Cap Trust under the Interest Rate Cap
Agreement.
(g) In
the
event that the Interest Rate Cap Provider’s obligations are guaranteed by a
third party under a guaranty relating to the Interest Rate Cap Agreement (such
guaranty the “Guaranty” and such third party the “Guarantor”), then to the
extent that the Interest Rate Cap Provider fails to make any payment by the
close of business on the day it is required to make payment under the terms
of
the Interest Rate Cap Agreement, the Trustee (in its capacity as Cap Trustee)
shall, promptly following actual notice of the Interest Rate Cap Provider’s
failure to pay, demand that the Guarantor make any and all payments (determined
in accordance with the Interest Rate Cap Agreement) then required to be made
by
the Guarantor pursuant to such Guaranty; provided, that the Trustee (in its
capacity as Cap Trustee) shall in no event be liable for any failure or delay
in
the performance by the Interest Rate Cap Provider or any Guarantor of its
obligations hereunder or pursuant to the Interest Rate Cap Agreement and the
Guaranty, nor for any special, indirect or consequential loss or damage of
any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
(h) Upon
an
early termination of the Interest Rate Cap Agreement other than in connection
with the optional termination of the Trust, the Trustee (in its capacity as
Cap
Trustee), at the direction of the Depositor, will use reasonable efforts to
appoint a successor interest rate cap provider to enter into a new interest
rate
cap agreement on terms substantially similar to the Interest Rate Cap Agreement,
with a successor interest rate cap provider meeting all applicable eligibility
requirements. If the Trustee (in its capacity as Cap Trustee) receives a
termination payment from the Interest Rate Cap Provider in connection with
such
early termination, the Trustee (in its capacity as Cap Trustee) will apply
such
termination payment to any upfront payment required to appoint the successor
interest rate cap provider. If the Trustee (in its capacity as Cap Trustee)
is
required to pay a termination payment to the Interest Rate Cap Provider in
connection with such early termination, the Trustee (in its capacity as Cap
Trustee) will apply any upfront payment received from the successor interest
rate cap provider to pay such termination payment.
(i) If
the
Trustee (in its capacity as Cap Trustee) is unable to appoint a successor
interest rate cap provider within 30 days of the early termination, then the
Trustee (in its capacity as Cap Trustee) will deposit any termination payment
received from the original Interest Rate Cap Provider into a separate,
non-interest bearing reserve account and will, on each subsequent Distribution
Date, withdraw from the amount then remaining on deposit in such reserve account
an amount equal to the payment, if any, that would have been paid to the Trustee
(in its capacity as Cap Trustee) by the original Interest Rate Cap Provider
calculated in accordance with the terms of the original Interest Rate Cap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(f).
(j) Upon
an
early termination of the Interest Rate Cap Agreement in connection with the
optional termination of the Trust, if the Trustee (in its capacity as Cap
Trustee) receives a termination payment from the Interest Rate Cap Provider,
such termination payment will be distributed in accordance with Section
4.01(f).
(k) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined in the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate Swap
Agreement, the Trustee (in its capacity as Supplemental Interest Trust Trustee)
shall, promptly following actual notice of such failure, breach or event, notify
the Depositor and send any notices and make any demands, on behalf of the
Supplemental Interest Trust, required to enforce the rights of the Supplemental
Interest Trust under the Interest Rate Swap Agreement.
(l) In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on the day
it
is required to make payment under the terms of the Interest Rate Swap Agreement,
the Trustee (in its capacity as Supplemental Interest Trust Trustee) shall,
promptly following actual notice of the Swap Provider’s failure to pay, demand
that the Guarantor make any and all payments (determined in accordance with
the
Interest Rate Swap Agreement) then required to be made by the Guarantor pursuant
to such Guaranty; provided, that the Trustee (in its capacity as Supplemental
Interest Trust Trustee) shall in no event be liable for any failure or delay
in
the performance by the Swap Provider or any Guarantor of its obligations
hereunder or pursuant to the Interest Rate Swap Agreement and the Guaranty,
nor
for any special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) in connection
therewith.
(m) Upon
an
early termination of the Interest Rate Swap Agreement other than in connection
with the optional termination of the Trust, the Trustee (in its capacity as
Supplemental Interest Trust Trustee), at the direction of the Depositor, will
use reasonable efforts to appoint a successor swap provider to enter into a
new
interest rate swap agreement on terms substantially similar to the Interest
Rate
Swap Agreement, with a successor swap provider meeting all applicable
eligibility requirements. If the Trustee (in its capacity as Supplemental
Interest Trust Trustee) receives a termination payment from the Swap Provider
in
connection with such early termination, the Trustee (in its capacity as
Supplemental Interest Trust Trustee) will apply such termination payment to
any
upfront payment required to appoint the successor swap provider. If the Trustee
(in its capacity as Supplemental Interest Trust Trustee) is required to pay
a
termination payment to the Swap Provider in connection with such early
termination, the Trustee
(in its
capacity as Supplemental Interest Trust Trustee) will apply any upfront payment
received from the successor swap provider to pay such termination
payment.
(n) If
the
Trustee (in its capacity as Supplemental Interest Trust Trustee) is unable
to
appoint a successor swap provider within 30 days of the early termination,
then
the Trustee (in its capacity as Supplemental Interest Trust Trustee) will
deposit any termination payment received from the original Swap Provider into
a
separate, non-interest bearing reserve account and will, on each subsequent
Distribution Date, withdraw from the amount then remaining on deposit in such
reserve account an amount equal to the Net Swap Payment, if any, that would
have
been paid to the Trustee (in its capacity as Supplemental Interest Trust
Trustee) by the original Swap Provider calculated in accordance with the terms
of the original Interest Rate Swap Agreement, and distribute such amount in
accordance with the terms of Section 4.01(e).
(o) Upon
an
early termination of the Interest Rate Swap Agreement in connection with the
optional termination of the Trust, if the Trustee (in its capacity as
Supplemental Interest Trust Trustee) receives a termination payment from the
Swap Provider, such termination payment will be distributed in accordance with
Section 4.01(e).
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01 The
Certificates.
Each
of
the Floating Rate Certificates, the Class P Certificates, the Class C
Certificates, the Class FL Certificates and the Residual Certificates shall
be
substantially in the forms annexed hereto as exhibits, and shall, on original
issue, be executed, authenticated and delivered by the Trustee to or upon the
order of the Depositor concurrently with the sale and assignment to the Trustee
of the Trust Fund. The Floating Rate 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 $1.00 in excess
thereof; provided, that the Floating Rate Certificates must be purchased in
minimum total investments of $100,000 per Class, 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 Certificate Principal Balance of such Class on the Closing Date.
The
Class C Certificates, the Class P Certificates, the Class FL Certificates and
the Residual Certificates are issuable in any Percentage Interests; provided,
however, that the sum of all such percentages for each such Class totals 100%
and no more than ten Certificates of each Class may be issued and outstanding
at
any one time.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. 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
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 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 5.02(c), the Floating Rate Certificates shall be Book-Entry
Certificates. The other Classes of Certificates shall not be Book-Entry
Certificates.
SECTION
5.02 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 Trustee 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 which office shall initially be the offices designated
by
the Trustee and, in the case of a Residual Certificate, upon satisfaction of
the
conditions set forth below, the Trustee 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
Trustee 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 Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed by,
the
Holder thereof or his attorney duly authorized in writing. In addition, (i)
with
respect to each Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for three separate
certificates, each representing such holder’s respective Percentage Interest in
the Class R-1 Interest, the Class R-2 Interest and the Class R-3 Interest that
was evidenced by the Class R Certificate being exchanged and (ii) with respect
to each Class R-X Certificate, the holder thereof may exchange, in the manner
described above, such Class R-X Certificate for three separate certificates,
each representing such holder’s respective Percentage Interest in the Class R-4
Interest, the Class R-5 Interest and the Class R-6 Interest that was evidenced
by the Class R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) 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 Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such 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 and the Depositor may 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 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 Trustee and its agents, employees, officers
and
directors as the absolute owner of the Certificates for all purposes
whatsoever.
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 in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise the
Trustee and Depository through the Financial Intermediaries and the Depository
Participants in writing that the continuation of a book-entry system through
the
Depository to the exclusion of definitive, fully registered certificates (the
“Definitive Certificates”) to Certificate Owners is no longer in the best
interests of the Certificate Owners. Upon surrender to the Certificate Registrar
of the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall in the
case
of (i) and (ii) above, execute on behalf of the Trust and authenticate the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class C Certificate, Class
P
Certificate, Class FL Certificates or Residual Certificate (the “Private
Certificates”) 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.
In
the event of any such transfer (other than in connection with (i) the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor or, in the case of the Class R-X Certificates, the first transfer
by
an Affiliate of the Depositor or the first transfer by the initial transferee
of
an Affiliate of the Depositor, (ii) the transfer of any such Class C, Class
P or
Residual Certificate to the issuer under the Indenture or the indenture trustee
under the Indenture or (iii) a transfer of any such Private Certificate from
the
issuer under the Indenture or the indenture trustee under the Indenture to
the
Depositor or an Affiliate of the Depositor), (x) unless such transfer is made
in
reliance upon Rule 144A (as evidenced by the investment letter delivered to
the
Trustee, in substantially the form attached hereto as Exhibit J) under the
Securities Act, the Trustee and the Depositor shall require a written Opinion
of
Counsel (which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor 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
or the Depositor or (y) the Trustee shall require the transferor to execute
a
transferor certificate (in substantially the form attached hereto as Exhibit
L)
and the transferee to execute an investment letter (in substantially the form
attached hereto as Exhibit J) acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee 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, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
Securities Act, and the transferor will be deemed to have made each of the
transferor representations and warranties set forth Exhibit L hereto in respect
of such interest as if it was evidenced by a Definitive Certificate and the
transferee will be deemed to have made each of the transferee representations
and warranties set forth Exhibit J hereto in respect of such interest as if
it
was evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee 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, no certification or Opinion of Counsel described above in this
Section 5.02(d) will be required in connection with the transfer, on the Closing
Date, of any Residual Certificate by the Depositor to an “accredited investor”
within the meaning of Rule 501 of the Securities Act.
No
transfer of a Private Certificate or any interest therein shall be made to
any
Plan, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person acquiring such Certificates with “Plan Assets” of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R. §
2510.3-101 (“Plan Assets”), as certified by such transferee in the form of
Exhibit M, unless the Trustee is provided with an Opinion of Counsel for the
benefit of the Trustee, the Depositor and the Servicer and on which they may
rely which establishes to the satisfaction of the Trustee that the purchase
of
such Certificates is permissible under applicable law, will not constitute
or
result in any prohibited transaction under ERISA or Section 4975 of the Code
and
will not subject the Depositor, the Servicer, the Trustee or the Trust Fund
to
any obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund. Neither a certification nor an Opinion of Counsel
will be required in connection with (i) the initial transfer of any such
Certificate by the Depositor to an Affiliate of the Depositor, (ii) the transfer
of any such Private Certificate to the issuer under the Indenture or the
indenture trustee under the Indenture or (iii) a transfer of any such Private
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor (in which case,
the Depositor or any Affiliate thereof shall have deemed to have represented
that such Affiliate is not a Plan or a Person investing Plan Assets) and the
Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Trustee, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the
Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Floating Rate Certificate or any interest therein, shall be deemed to
have
represented, by virtue of its acquisition or holding of the Floating Rate
Certificate, or interest therein, that either (i) it is not a Plan or (ii)
(A)
it is an accredited investor within the meaning of Prohibited Transaction
Exemption (“PTE”) 90-59, 55 Fed. Reg. 36724 (September 6, 1990), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765
(November 13, 2000) and PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the
“Exemption”) and (B) the acquisition and holding of such Certificate and the
separate right to receive payments from the Supplemental Interest Trust are
eligible for the exemptive relief available under Prohibited Transaction Class
Exemption (“PTCE”) 84-14, 91-38, 90-1, 95-60 or 96-23, in the case of a Floating
Rate Certificate.
Subsequent
to the termination of the Supplemental Interest Trust, each Transferee of a
Mezzanine Certificate will be deemed to have represented by virtue of its
purchase or holding of such Certificate (or interest therein) that either (a)
such Transferee is not a Plan or purchasing such Certificate with Plan Assets,
(b) it has acquired and is holding such Certificate in reliance on the Exemption
and that it understands that there are certain conditions to the availability
of
the Exemption including that such Certificate must be rated, at the time of
purchase, not lower than “BBB-” (or its equivalent) by a Rating Agency or (c)
the following conditions are satisfied: (i) such Transferee is an insurance
company, (ii) the source of funds used to purchase or hold such Certificate
(or
interest therein) is an “insurance company general account” (as defined in PTCE
95-60), and (iii) the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the three preceding paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or interest therein was effected in violation of the provisions of the three
preceding paragraphs shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust from and against any and all liabilities,
claims, costs or expenses incurred by those parties as a result of that
acquisition or holding.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and 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 Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each of
the
following:
(A)
an
affidavit in the form of Exhibit K hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Residual Certificate that is the subject
of the proposed transfer as a nominee, trustee or agent for any Person who
is
not a Permitted Transferee; and
(B)
a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Residual Certificates.
(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 a 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. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section or for making any distributions due on such 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 the Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to recover
from any Holder of a 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 Trustee
shall be distributed and delivered by the Trustee to the prior 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
Trustee 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 Trustee
to the previous Holder of such Residual Certificate that is a Permitted
Transferee, except that in the event that the Trustee 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 Trustee 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 Trustee and it shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its exercise of
such
discretion.
(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
Trustee 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,
in
form and substance satisfactory to the Trustee, (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 rating of the
Certificates and (ii) an Opinion of Counsel to the effect that such removal
will
not cause any REMIC created hereunder to fail to qualify as a
REMIC.
(e) No
transfer of the Class C Certificates shall be made unless the transferee of
such
Certificates provides to the Trustee the appropriate tax certification form
(i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable
(or any successor form thereto)), as a condition to such transfer and agrees
to
update such forms (i) upon expiration of any such form, (ii) as required under
then applicable U.S. Treasury regulations and (iii) promptly upon learning
that
any IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable
(or
any successor form thereto), has become obsolete or incorrect. Upon receipt
of
any such tax certification form from a transferee of any Class C Certificate,
the Trustee shall provide a copy of such tax certification form to the Basis
Risk Cap Provider, the Supplemental Interest Trust Trustee and the Cap Trustee.
The Supplemental Interest Trust Trustee shall provide a copy of any such tax
certification form to the Swap Provider and the Cap Trustee shall provide a
copy
of any such tax certification form to the Interest Rate Cap
Provider.
Each
Holder of a Class C Certificate and each transferee thereof shall be deemed
to
have consented to the Trustee, the Supplemental Interest Trustee and the Cap
Trustee forwarding to the Basis Risk Cap Provider, the Swap Provider and the
Interest Rate Cap Provider, respectively, any such tax certification form it
has
provided and updated in accordance with these transfer restrictions. Any
purported sales or transfers of any Class C Certificate to a transferee which
does not comply with these requirements shall be deemed null and void under
this
Agreement.
The
Trustee, the Supplemental Interest Trustee and the Cap Trustee shall not be
liable for the content or truthfulness of any such tax certification provided
to
it. The Trustee, the Supplemental Interest Trustee and the Cap Trustee shall
only be required to forward any tax certification received by it to the Basis
Risk Cap Provider, the Swap Provider or the Interest Rate Cap Provider,
respectively, at the last known address provided to it, and shall not be liable
for the receipt of such tax certification by the Basis Risk Cap Provider, the
Swap Provider or the Interest Rate Cap Provider, nor any failure of the Basis
Risk Cap Provider, the Swap Provider or the Interest Rate Cap Provider to
process such certification or to take any action as required under the Basis
Risk Cap Agreement, the Interest Rate Swap Agreement or the Interest Rate Cap
Agreement, respectively, or under applicable law. The Trustee, the Supplemental
Interest Trustee and the Cap Trustee shall have no duty to take action to
correct any misstatement or omission in any tax certification provided to it
and
forwarded to the Basis Risk Cap Provider, the Swap Provider or the Interest
Rate
Cap Provider, respectively.
(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
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
5.03 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
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 or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Trustee 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 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 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
5.04 Persons
Deemed Owners.
The
Servicer, the Depositor, the Trustee, the Certificate Registrar, any Paying
Agent and any agent of the Servicer, the Depositor, the Trustee, the Certificate
Registrar or any Paying Agent 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 4.01 and for all
other purposes whatsoever, and none of the Depositor, the Trustee, the
Certificate Registrar or any Paying Agent nor any agent of any of them shall
be
affected by notice to the contrary.
SECTION
5.05 Appointment
of Paying Agent.
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01. The duties of the Paying Agent
may include the obligation (i) to withdraw funds from the Collection Account
pursuant to Section 3.11(a) and for the purpose of making the distributions
referred to above and (ii) to distribute statements and provide information
to
Certificateholders as required hereunder. The Paying Agent 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 and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
ARTICLE
VI
THE
SERVICER AND THE DEPOSITOR
SECTION
6.01 Liability
of the Servicer and the Depositor.
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer herein.
The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the
Depositor.
SECTION
6.02 Merger
or
Consolidation of, or Assumption of the Obligations of the Servicer or the
Depositor.
Any
entity into which the Servicer or the Depositor may be merged or consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Servicer or the Depositor shall be a party, or any corporation succeeding
to
the business of the Servicer or the Depositor, shall be the successor of the
Servicer or the Depositor, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that
the successor Servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor Servicer.
SECTION
6.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer or the Depositor nor any of the directors or officers or employees
or agents of the Servicer or the Depositor shall be under any liability to
the
Trust or the Certificateholders for any action taken or for refraining from
the
taking of any action by the Servicer or the Depositor in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer, the Depositor or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties of the
Servicer or the Depositor, as the case may be, or by reason of its reckless
disregard of its obligations and duties of the Servicer or the Depositor, as
the
case may be, hereunder. The Servicer and any director or officer or employee
or
agent of the 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. The Servicer and the Depositor, and any director or officer
or employee or agent of the Servicer or the Depositor, shall be indemnified
by
the Trust and held harmless against (i) any loss, liability or expense incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad faith
or
negligence in the performance of duties hereunder or by reason of its reckless
disregard of obligations and duties hereunder or (ii) any breach of a
representation or warranty by the Originator regarding the Mortgage Loans.
The
Servicer or the Depositor may undertake any such action which it may deem
necessary or desirable in respect of this Agreement, and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder.
In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust and the Depositor or the Servicer shall be entitled to be reimbursed
therefor from the Collection Account as and to the extent provided in Section
3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account. The
Servicer’s right to indemnity or reimbursement pursuant to this Section shall
survive any resignation or termination of the Servicer pursuant to Section
6.04
or 7.01 with respect to any losses, expenses, costs or liabilities arising
prior
to such resignation or termination (or arising from events that occurred prior
to such resignation or termination). This paragraph shall apply to the Servicer
solely in its capacity as Servicer hereunder and in no other
capacities.
SECTION
6.04 Limitation
on Resignation of the Servicer; Assignment of Servicing.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination pursuant to the preceding sentence
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect obtained at the expense of the Servicer and delivered
to
the Trustee. No resignation of the Servicer shall become effective until the
Trustee or a successor servicer shall have assumed the Servicer’s
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Except
as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided, however, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Subservicer as an indemnitee under this Agreement.
SECTION
6.05 Successor
Servicer.
In
connection with the appointment of any successor Servicer or the assumption
of
the duties of the Servicer, the Depositor or the Trustee may make such
arrangements for the compensation of such successor Servicer out of payments
on
the Mortgage Loans as the Depositor or the Trustee and such successor Servicer
shall agree. If the successor Servicer does not agree that such market value
is
a fair price, such successor Servicer shall obtain two quotations of market
value from third parties actively engaged in the servicing of single-family
mortgage loans. Notwithstanding the foregoing, the compensation payable to
a
successor Servicer may not exceed the compensation which the Servicer would
have
been entitled to retain if the Servicer had continued to act as Servicer
hereunder.
SECTION
6.06 Delegation
of Duties.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegee
subservicing any Mortgage Loans.
SECTION
6.07 [Reserved].
SECTION
6.08 Inspection.
The
Servicer, in its capacity as Servicer, shall afford the Depositor and the
Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations.
SECTION
6.09 Duties
of
the Credit Risk Manager.
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
pursuant to the Credit Risk Management Agreement to the Credit Risk Manager
by
the Servicer. The Credit Risk Manager shall look solely to the Servicer for
all
information and data (including loss and delinquency information and data)
and
loan level information and data relating to the servicing of the Mortgage Loans
and the Trustee shall not have any obligation to provide any such information
to
the Credit Risk Manager and shall not otherwise have any responsibility with
respect to the performance of the Credit Risk Manager
SECTION
6.10 Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Servicer or the Depositor for any action taken or for refraining from the taking
of any action made in good faith pursuant to this Agreement, in reliance upon
information provided by the Servicer under the Credit Risk Management Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect the Credit Risk Manager or any such person against liability that would
otherwise be imposed by reason of willful malfeasance or bad faith in its
performance of its duties. The Credit Risk Manager and any director, officer,
employee, or agent of the Credit Risk Manager may rely in good faith on any
document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder,
and may rely in good faith upon the accuracy of information furnished by the
Servicer pursuant to the Credit Risk Management Agreement in the performance
of
its duties thereunder and hereunder.
SECTION
6.11 Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by the Depositor
at
any time, without cause, with the consent of Certificateholders holding not
less
than 66 2/3% of the Voting Rights, upon ten (10) days prior written notice.
The
Depositor shall provide such written notice to the Trustee and upon receipt
of
such notice and evidence of such Certificateholders’ consent, the Trustee shall
provide written notice to the Credit Risk Manager of its removal, effective
upon
receipt of such notice.
ARTICLE
VII
DEFAULT
SECTION
7.01 Servicer
Events of Termination.
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) The
failure by the Servicer to make any Advance; or (B) any other failure by the
Servicer to deposit in the Collection Account or Distribution Account any
deposit required to be made under the terms of this Agreement which continues
unremedied for a period of two Business Days after the date upon which written
notice (which shall also be provided via facsimile at the number listed in
Section 11.05 of this Agreement) of such failure shall have been given to the
Servicer by the Trustee or to the Servicer and the Trustee by any Holders of
a
Regular Certificate evidencing at least 25% of the Voting Rights;
or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days, after the date (A) on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trustee or to the Trustee by any Holders
of a Regular Certificate evidencing at least 25% of the Voting Rights or (B)
of
actual knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) The
entry
against the 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;
(iv) The
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 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 Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations; or
(v) The
failure by the Servicer to duly perform, within the required time period, its
obligations under Section 3.20, Section 3.21 or Section 4.05 of this Agreement
which failure continues unremedied for a period of fifteen (10) days after
the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by any party to this
Agreement.
then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 5:00 P.M., New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trustee shall give the Servicer notice of such failure to
advance by 5:00 P.M. New York time on the Servicer Remittance Date), the Trustee
shall terminate all of the rights and obligations of the Servicer under this
Agreement, to the extent permitted by law, and in and to the Mortgage Loans
and
the proceeds thereof and the Trustee (as
successor servicer),
or a
successor servicer appointed in accordance with Section 7.02, shall make such
Advance in accordance with Section 4.04 and assume, pursuant to Section 7.02,
the duties of a successor Servicer and (y) in the case of (i)(B), (ii), (iii),
(iv) and (v) above, the Trustee shall, at the direction of the Holders of each
Class of Regular Certificates evidencing Percentage Interests aggregating not
less than 51%, by notice then given in writing to the Servicer (and to the
Trustee if given by Holders of Certificates), terminate all of the rights and
obligations of the Servicer as servicer under this Agreement. Any such notice
to
the Servicer shall also be given to each Rating Agency, the Credit Risk Manager,
the Depositor and the Servicer. On or after the receipt by the Servicer (and
by
the Trustee if such notice is given by the Holders) of such written notice,
all
authority and power of the 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 pursuant to and under this Section; and, without
limitation, and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the 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 Servicer agrees to cooperate with
the Trustee (or the applicable successor Servicer) in effecting the termination
of the responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee (as successor servicer) of all documents
and records requested by it to enable it to assume the Servicer’s functions
under this Agreement within ten Business Days subsequent to such notice, the
transfer within one Business Day subsequent to such notice to the Trustee (or
the applicable successor Servicer) for the administration by it of all cash
amounts that shall at the time be held by the Servicer and to be deposited
by it
in the Collection Account, the Distribution Account, any REO Account or any
Servicing Account or that have been deposited by the Servicer in such accounts
or thereafter serviced by the Servicer with respect to the Mortgage Loans or
any
REO Property received by the Servicer (provided, however, that the Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances, Servicing Advances, accrued Servicing Fees or otherwise,
and shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination, with respect to events occurring prior
to
such termination). All reasonable costs and expenses (including attorneys’ fees)
incurred in connection with transferring the Mortgage Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer (or if the
predecessor Servicer is the Trustee, the initial Servicer) upon presentation
of
reasonable documentation of such costs and expenses and to the extent not paid
by the Servicer, by the Trust.
SECTION
7.02 Trustee
to Act; Appointment of Successor Servicer.
(a) Within
90
days of the time the Servicer (and the Trustee, if notice is sent by the
Holders) receives a notice of termination pursuant to Section 7.01 or 6.04,
the
Trustee (or such other successor Servicer as is approved in accordance with
this
Agreement) shall be the successor in all respects to the 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 Servicer by the terms and provisions
hereof arising on and after its succession. Notwithstanding the foregoing,
the
parties hereto agree that the Trustee, in its capacity as successor Servicer,
immediately will assume all of the obligations of the Servicer to make advances.
Notwithstanding the foregoing, the Trustee, in its capacity as successor
Servicer, shall not be responsible for the lack of information and/or documents
that it cannot obtain through reasonable efforts. As compensation therefor,
the
Trustee (or such other successor Servicer) shall be entitled to such
compensation as the 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 Servicer or (ii) if the Trustee is
legally unable so to act, 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 $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided, that the appointment of
any
such successor Servicer will not result in the qualification, reduction or
withdrawal of the ratings assigned to the Certificates by the Rating Agencies
as
evidenced by a letter to such effect from the Rating Agencies. Pending
appointment of a successor to the Servicer hereunder, 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
Servicer would otherwise have received pursuant to Section 3.18 (or such other
compensation as the Trustee and such successor shall agree, not to exceed the
Servicing Fee). The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen under this Agreement
prior to its termination as Servicer to pay any deductible under an insurance
policy pursuant to Section 3.14 or to reimburse the Trustee pursuant to Section
3.06), nor shall any successor Servicer be liable for any acts or omissions
of
the predecessor Servicer or for any breach by such 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.
All Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be
paid
by the successor Servicer or the Trustee (in which case the successor Servicer
or the Trustee, as applicable, shall be entitled to reimbursement therefor
from
the assets of the Trust).
(b) Any
successor to the Servicer, including the Trustee, shall during the term of
its
service as 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
Servicer hereunder and a fidelity bond in respect of its officers, employees
and
agents to the same extent as the Servicer is so required pursuant to Section
3.14.
(c) In
connection with the resignation, removal or expiration of the term of the
Servicer hereunder, or in connection with the resignation or removal of any
successor to the Servicer (or any other successor to the Servicer appointed
hereunder) acting as successor Servicer hereunder, either (i) the successor
Servicer, (or any other successor to the Servicer appointed hereunder) acting
as
successor Servicer hereunder, shall represent and warrant that it is a member
of
MERS in good standing and shall agree to comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to revise
its records to reflect the transfer of servicing to the successor Servicer
as
necessary under MERS’ rules and regulations or (ii) the predecessor Servicer
shall cooperate with the successor Servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS®
System to the successor Servicer. The predecessor Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing
any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this paragraph.
SECTION
7.03 [Reserved].
SECTION
7.04 Waiver
of
Defaults.
The
Majority Certificateholders may, on behalf of all Certificateholders, waive
any
events permitting removal of the Servicer as servicer pursuant to this Article
VII, provided, however, that the Majority Certificateholders may not waive
a
default in making a required distribution on a Certificate without the consent
of the Holder of such Certificate. Upon any waiver of a past default, such
default shall cease to exist and any Servicer Event of Termination arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trustee to the Rating
Agencies.
SECTION
7.05 Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII or Section 6.04, the Trustee shall give prompt written notice
thereof to the Certificateholders at their respective addresses appearing in
the
Certificate Register and 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 a Servicer Event of
Termination for five Business Days after a Responsible Officer of the Trustee
(in the case of a Servicer Event of Termination) becomes aware of the occurrence
of such an event, the Trustee shall transmit by mail to the Credit Risk Manager
and all Certificateholders notice of such occurrence unless such default,
Servicer Event of Termination shall have been waived or cured.
SECTION
7.06 Survivability
of Servicer Liabilities.
Notwithstanding
anything herein to the contrary, upon termination of the Servicer hereunder,
any
liabilities of the Servicer which accrued prior to such termination shall
survive such termination.
ARTICLE
VIII
THE
TRUSTEE
SECTION
8.01 Duties
of
Trustee.
The
Trustee, prior to the occurrence of a Servicer Event of Termination and after
the curing of all Servicer Events of Termination which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set
forth in this Agreement. If a Servicer Event of Termination has occurred (which
has not been cured) of which a Responsible Officer has 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.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to it 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 the Trustee will not
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 shall take such action as it deems appropriate
to
have the instrument corrected, and if the instrument is not corrected to the
Trustee’s satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct; provided, however, that:
(i) prior
to
the occurrence of a Servicer Event of Termination, and after the curing of
all
such Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance
of
such duties and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement against
the
Trustee and, in the absence of bad faith on the part of the Trustee, may
conclusively rely, as to the truth of the statements and the correctness of
the
opinions expressed therein, upon any certificates or opinions furnished to
the
Trustee and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee unless it shall be proved that
the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Majority Certificateholders relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee
or
exercising or omitting to exercise any trust or power conferred upon the Trustee
under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) or of the existence of any Servicer Event of Termination
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 failure from the Depositor, the Servicer or the Majority
Certificateholders.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial 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 adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the 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 Servicer in accordance with the terms of this
Agreement.
SECTION
8.02 Certain
Matters Affecting the Trustee.
(a) Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and rely upon, and shall be 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 may
prescribe;
(ii) the
Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such Opinion
of
Counsel;
(iii) the
Trustee shall not 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 reasonable
security or indemnity 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) the
Trustee shall not 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 a Servicer Event of Termination and after the curing of all
Servicer Events of Termination 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. The reasonable expense of every such
examination shall be paid by the Servicer or, if paid by the Trustee shall
be
reimbursed by the Servicer upon demand and, if not reimbursed by the Servicer,
shall be reimbursed by the Trust. Nothing in this clause (v) shall derogate
from
the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as Servicer pursuant to Section
7.02
and thereupon only for the acts or omissions of the Trustee as successor
Servicer;
(vii) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, custodians
or
nominees;
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
(ix) the
Trustee shall not be personally liable for any loss resulting from the
investment of funds held in the Collection Account or the REO Account made
at
the direction of the Servicer pursuant to Section 3.12;
(x) the
Trustee or its Affiliates are permitted to receive compensation that could
be
deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such compensation
shall
not be considered an amount that is reimbursable or payable pursuant to Section
3.11; and
(xi) the
Depositor hereby directs the Trustee to execute and deliver the PMI Policy
on
behalf of the Trust Fund in the form presented to it by the Depositor. Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
of the PMI Policy, and the performance of its duties and satisfaction of its
obligations thereunder.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply with
Applicable Law.
SECTION
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document or MERS or the MERS System other than with respect to the
Trustee’s execution and authentication of the Certificates. The Trustee shall
not be accountable for the use or application by the Servicer, or for the use
or
application of any funds paid to the Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Collection Account by the Servicer. The
Trustee shall at no 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 Servicer pursuant to Section 7.02); 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 Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Originator,
the
Seller or the Servicer 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 Servicer 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; the acts or omissions of any of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), any Sub-Servicer or any Mortgagor; any action of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub-Servicer taken in the name of the Trustee;
the failure of the Servicer or any Sub-Servicer to act or perform any duties
required of it as agent of the Trustee hereunder; or any action by the Trustee
taken at the instruction of the Servicer (other than if the Trustee shall assume
the duties of the Servicer pursuant to Section 7.02); 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 pursuant to Section 2.01. The Trustee shall have
no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall
have
become the successor Servicer).
SECTION
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not Trustee
may
transact any banking and trust business with the Originator, the Servicer,
the
Depositor or their Affiliates.
SECTION
8.05 Trustee
Compensation and Expenses.
(a) The
Trustee shall withdraw from the Distribution Account on each Distribution Date
and pay to itself the Trustee Compensation prior to making any distributions
to
Certificateholders consisting of income earned on amounts on deposit in the
Distribution Account and the Trustee Fee.
(b) The
Trustee, or any director, officer, employee or agent of the Trustee, shall
be
indemnified by the Trust Fund and held harmless against any loss, liability
or
expense (not including expenses and disbursements incurred or made by the
Trustee, including the compensation and the expenses and disbursements of its
agents and counsel, in the ordinary course of the Trustee’s performance in
accordance with the provisions of this Agreement) incurred by the Trustee
arising out of or in connection with the acceptance or administration of its
obligations and duties under this Agreement, other than any loss, liability
or
expense (i) resulting from a breach of the Servicer’s obligations and duties
under this Agreement for which the Trustee is indemnified under Section 8.05(b)
or (ii) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence of the Trustee in the performance of its
duties hereunder or by reason of the Trustee’s reckless disregard of obligations
and duties hereunder or as a result of a breach of the Trustee’s obligations
under Article X hereof. It is understood by the parties hereto that a “claim” as
used in the preceding sentence includes any claim for indemnification made
by
the Custodian under Section 22 of the Custodial Agreement; provided, however,
that the Trustee shall not lose any right it may have to indemnification under
this Section 8.05 due to the willful misfeasance, bad faith or negligence of
the
Custodian in the performance of its duties under the Custodial Agreement or
by
reason of the Custodian’s reckless disregard of its obligations and duties under
the Custodial Agreement. Any amounts payable to the Trustee or any director,
officer, employee or agent of the Trustee, in respect of the indemnification
provided by this Section 8.05, or pursuant to any other right of reimbursement
from the Trust Fund that the Trustee or any director, officer, employee or
agent
of the Trustee, may have hereunder in its capacity as such, may be withdrawn
by
the Trustee from the Distribution Account at any time. The foregoing indemnity
shall survive the resignation or removal of the Trustee.
SECTION
8.06 Eligibility
Requirements for Trustee.
The
Trustee 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, having a combined
capital and surplus of at least $50,000,000 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 offices 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 shall cease to be eligible in accordance
with the provisions of this Section 8.06, the Trustee shall resign immediately
in the manner and with the effect specified in Section 8.07.
SECTION
8.07 Resignation
or Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Servicer and each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to
the
successor Trustee. If no successor Trustee shall have been so appointed and
having accepted appointment within 30 days after the giving of such notice
of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or if at any time the Trustee shall be legally unable to act, or
shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor or the Servicer may remove
the
Trustee. If the Depositor or the Servicer removes the Trustee under the
authority of the immediately preceding sentence, the Depositor shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy
to
the successor trustee.
The
Majority Certificateholders may at any time remove the Trustee by written
instrument or instruments delivered to the Servicer, the Depositor and the
Trustee; the Depositor shall thereupon use its best efforts to appoint a
successor trustee in accordance with this Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 8.08.
SECTION
8.08 Successor
Trustee.
Any
successor Trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, the Servicer and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective, and
such successor Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as Trustee.
The
Depositor, the Servicer and the predecessor Trustee 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 all such
rights, powers, duties and obligations.
No
successor Trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
Trustee shall not result in a downgrading of the Regular Certificates by any
Rating Agency, as evidenced by a letter from each Rating Agency.
Upon
acceptance of appointment by a successor Trustee as provided in this Section
8.08, the successor Trustee shall mail notice of the appointment of a successor
Trustee hereunder to all Holders of Certificates at their addresses as shown
in
the Certificate Register and to each Rating Agency.
Any
Person appointed as successor trustee pursuant to this Agreement shall also
be
required to serve as successor supplemental interest trust trustee under the
Interest Rate Swap Agreement and as successor cap trustee under the Interest
Rate Cap Agreement.
SECTION
8.09 Merger
or
Consolidation of Trustee.
Any
entity into which the Trustee 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 shall be a party, or any entity succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08, 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 shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, 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
Servicer and the Trustee may consider necessary or desirable. Any such
co-trustee or separate trustee shall be subject to the written approval of
the
Servicer. If the Servicer shall not have joined in such appointment within
15
days after the receipt by it of a request so to do, or in the case a Servicer
Event of Termination shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06, and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08. The Servicer shall be responsible for the fees of any co-trustee
or separate trustee appointed hereunder.
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 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
Servicer and the Trustee, acting jointly, may at any time accept the resignation
of or remove any separate trustee or co-trustee except that following the
occurrence of a Servicer Event of Termination, the Trustee acting alone may
accept the resignation 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 and the Servicer.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
SECTION
8.11 Limitation
of Liability.
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee 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 Trustee 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, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Seller, the Depositor, the Servicer and each
Certificateholder upon reasonable prior notice during normal business hours,
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. Upon request, the Trustee shall furnish the Depositor, the Servicer
and
any requesting Certificateholder with its most recent financial statements.
The
Trustee shall cooperate fully with the Seller, the Servicer, the Depositor
and
such Certificateholder and shall make available to the Seller, the Servicer,
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, the Servicer 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.
SECTION
8.13 Suits
for
Enforcement.
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders, or may, proceed to protect and enforce its
rights and the rights of the Certificateholders under this Agreement 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 the Custodian.
The
Trustee shall, at the direction of the Depositor and with the consent of the
Servicer, appoint the Custodian to hold all or a portion of the Mortgage Files.
The appointment of the Custodian may at any time be terminated and a substitute
Custodian appointed therefor at the direction of the Depositor to the Trustee,
the consent to which shall not be unreasonably withheld. The Custodian shall
be
entitled to its fees and expenses in accordance with the Custodial Agreement,
which fees and expenses shall be paid to the Custodian from the Trust in
accordance with Section 8.05. Subject to Article VIII hereof, the Trustee agrees
to comply with the terms of the Custodial Agreement, which agreement may be
amended from time to time, and shall have the right 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 the
Custodian. Notwithstanding anything to the contrary in this Agreement, the
Custodian is not an agent of the Trustee and in no event shall the Trustee
be
liable for any acts, omission, duties, obligations, or liabilities of the
Custodian. In no event shall the appointment of the Custodian pursuant to the
Custodial Agreement diminish the obligations of the Trustee
hereunder.
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01 REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
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 and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code.
(c) The
Trustee shall pay any and all expenses relating to any tax audit of any REMIC
(including, but not limited to, any professional fees or any administrative
or
judicial proceedings with respect to any Trust REMIC that involve the Internal
Revenue Service or state tax authorities), including the expense of obtaining
any tax related Opinion of Counsel. The Trustee shall be entitled to
reimbursement of expenses incurred pursuant to this Section 9.01(c) to the
extent provided in Section 8.05.
(d) The
Trustee shall prepare, sign and file, all of the REMICs’ federal and state tax
and information returns (including Form 8811) as the direct representative
each
REMIC created hereunder. The expenses of preparing and filing such returns
shall
be borne by the Trustee.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC
1,
REMIC
2
and
REMIC 3 and shall act as Tax Matters Person for each such REMIC. The Holder
of
the Class R-X Certificate at any time holding the largest Percentage Interest
thereof shall be the Tax Matters Person with respect to REMIC 4,
REMIC
5
and REMIC 6, and shall act as Tax Matters Person for each such REMIC. The
Trustee, as agent for the Tax Matters Person, shall perform on behalf of each
REMIC all reporting and other tax compliance duties that are the responsibility
of such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee, as agent for the Tax Matters Person, shall provide
(i) to the Treasury or other governmental authority such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any disqualified person or organization upon reasonable
additional compensation and (ii) to the Certificateholders such information
or
reports as are required by the Code or REMIC Provisions. The Trustee, as agent
for the Tax Matters Person, shall represent each REMIC in any administrative
or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of
any REMIC, enter into settlement agreements with any government taxing agency,
extend any statute of limitations relating to any item of any REMIC and
otherwise act on behalf of any REMIC in relation to any tax matter involving
the
Trust.
(f) The
Trustee, the Servicer and the Holders of Certificates shall take any action
or
cause any REMIC to take any action necessary to create or maintain the status
of
each REMIC 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 Servicer
or the Holder of any 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 (i) endanger the status of such REMIC as a REMIC or
(ii)
result in the imposition of a tax upon such REMIC (including but not limited
to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the
tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an “Adverse REMIC Event”) unless the Trustee and the
Servicer 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
endanger such status or result in the imposition of such a tax. In addition,
prior to taking any action with respect to any REMIC created hereunder or the
assets therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee and the Servicer, or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee has advised it in writing that an Adverse REMIC Event could
occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trustee shall pay any remaining REMIC taxes out of current or future amounts
otherwise distributable to the Holder of the Residual Certificate in the REMICs
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 the related REMIC. Subject to the foregoing, in the event
that a REMIC incurs a state or local tax, including franchise taxes, as a result
of a determination that such REMIC is domiciled in the State of California
for
state tax purposes by virtue of the location of the Servicer, the Servicer
agrees to pay on behalf of such REMIC when due, any and all state and local
taxes imposed as a result of such a determination, in the event that the Holder
of the related Residual Certificate fails to pay such taxes, if any, when
imposed.
(h) The
Trustee, as agent for the Tax Matters Person, 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 Servicer shall enter into any arrangement by which any
REMIC
created hereunder will receive a fee or other compensation for
services.
(k) [Reserved].
(l) The
Trustee will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
SECTION
9.02 Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer or 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 any REMIC created hereunder pursuant to Article X of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement or
(v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to either REMIC
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 (a) affect
adversely the status of any REMIC created hereunder as a REMIC or of the
interests therein other than the Residual Certificates as the regular interests
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any REMIC created hereunder to be subject to a tax on prohibited
transactions or prohibited contributions pursuant to the REMIC
Provisions.
SECTION
9.03 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the Trustee and the Trust Fund against any and all
losses, claims, damages, liabilities or expenses (“Losses”) resulting from such
negligence; provided, however, that the Servicer shall not be liable for any
such Losses attributable to the action or inaction of the Trustee, the Depositor
or the Holder of such Residual Certificate, as applicable, nor for any such
Losses resulting from misinformation provided by the Holder of such Residual
Certificate on which the Servicer has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Servicer have any liability (1) for
any action or omission that is taken in accordance with and in compliance with
the express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent performance
by the Servicer of its duties and obligations set forth herein, and (3) for
any
special or consequential damages to Certificateholders (in addition to payment
of principal and interest on the Certificates).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the Trust Fund against any and all Losses resulting
from
such negligence; provided, however, that the Trustee shall not be liable for
any
such Losses attributable to the action or inaction of the Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Trustee has relied. The foregoing shall not
be
deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Trustee have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Trustee of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
ARTICLE
X
TERMINATION
SECTION
10.01 Termination.
(a) The
respective obligations and responsibilities of the Servicer, the Depositor
and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Terminator of the Mortgage Loans as described below and (iv) the
Distribution Date in December, 2036. Notwithstanding the foregoing, in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late
ambassador of the United States to the Court of St. James’s, living on the date
hereof.
The
Servicer (in such context, the “Terminator”), may, at its option, terminate this
Agreement on any date on which the aggregate Stated Principal Balance of the
Mortgage Loans (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) on such date is equal to or less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date by purchasing,
on
the next succeeding Distribution Date, all of the outstanding Mortgage Loans
and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market
value
of the Mortgage Loans and REO Properties (as determined and as agreed upon
as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to the related
Certificateholders pursuant to Section 10.01(c) by (x) the Terminator, (y)
the
Holders of a majority in Percentage Interest in the Class C Certificates and
(z)
if the Floating Rate Certificates will not receive all amounts owed to it as
a
result of the termination, the Trustee, provided that if this clause (z) applies
to such determination, such determination shall be based solely upon an
appraisal obtained as provided in the last sentence of this paragraph), plus
accrued and unpaid interest thereon at the weighted average of the Mortgage
Rates through the end of the Due Period preceding the final Distribution Date
plus unreimbursed Servicing Advances, Advances, any unpaid Servicing Fees
allocable to such Mortgage Loans and REO Properties and any accrued and unpaid
Net WAC Rate Carryover Amounts and any Swap Termination Payment payable to
the
Swap Provider or any predecessor swap provider (the “Termination Price”);
provided, however, such option may only be exercised if the Termination Price
is
sufficient to result in the payment of all interest accrued on, as well as
amounts necessary to retire the principal balance of, each class of notes issued
pursuant to the Indenture. If the determination of the fair market value of
the
Mortgage Loans and REO Properties shall be required to be made and agreed upon
by the Terminator, the Holders of a majority in Percentage Interest in the
Class
C Certificates and the Trustee as provided in (ii) above, such determination
shall be based on an appraisal of the value of the Mortgage Loans and REO
Properties conducted by an independent appraiser mutually agreed upon by the
Terminator, the Holders of a majority in Percentage Interest in the Class C
Certificates and the Trustee in their reasonable discretion, and (A) such
appraisal shall be obtained at no expense to the Trustee and (B) the Trustee
may
conclusively rely on, and shall be protected in relying on, such
appraisal.
By
acceptance of a Residual Certificate, the Holders of the Residual Certificates
agree, in connection with any termination hereunder, to assign and transfer
any
amounts in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class C
Certificates.
(b) In
connection with any termination pursuant to this Section 10.01:
(1) At
least
twenty (20) days prior to the latest date on which notice of such optional
termination is required to be mailed to the Certificateholders, the Terminator
shall notify in writing (which may be done in electronic format) the Swap
Provider and the Trustee of the final Distribution Date on which the Terminator
intends to terminate the Trust Fund;
(2) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Section 10.01,
the Swap Provider shall notify in writing (in accordance with the applicable
provisions of the Interest Rate Swap Agreement) (which may be done in electronic
format) and by phone, the Terminator and the Trustee of the amount of the
Estimated Swap Termination Payment; and
(3) Three
(3)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Sections 10.01, (x) the Terminator shall, no
later
than 1:00 pm (New
York
City time) on such day, deliver to the Trustee and the Trustee shall deposit
funds in the Distribution Account in an amount equal to the sum of the
Termination Price (which shall be based on the Estimated Swap Termination
Payment), and (y) if the Trustee shall have receieved an Officer’s Certificate
stating that all of the requirements for Optional Termination have been met,
including without limitation the deposit required pursuant to the immediately
preceding clause (x) as well as the requirements specified in Section 10.01,
then the Trustee shall, on the same Business Day, provide written notice (which
may be done in electronic format) to the Terminator and the Swap Provider (in
accordanace with the applicable provision of the Interest Rate Swap Agreement)
confirming (a) its receipt of the Termination Price (which shall be based on
the
Estimated Swap Termination Payment), and (b) that all other requirements
specified in Section 10.01 have been met (the “Optional Termination Notice”).
Upon the delivery of the Optional Termination Notice by the Trustee pursuant
to
the preceding sentence, (i) the optional termination shall become irrevocable,
(ii) the notice to Certificateholders of such optional termination provided
pursuant to Section 10.01 shall become unrescindable, (iii) the Swap Provider
shall determine the Swap Termination Payment in accordance with the Interest
Rate Swap Agreement (which shall not exceed the Estimated Swap Termination
Payment), and (iv) the Swap Provider shall provide to the Trustee written notice
of the amount of the Swap Termination Payment not later than two (2) Business
Days prior to the final Distribution Date specified in the notices required
pursuant to Sections 10.01.
Upon
a
termination pursuant to this Section 10.01, the Trustee shall assign to the
Terminator each of the representations and warranties made by the Originator
and
the Seller pursuant to the Master Agreement and the Assignment Agreement,
without recourse, representation or warranty.
In
connection with any such purchase pursuant to this Section 10.01, the Terminator
shall deposit in the Distribution Account all amounts then on deposit in the
Collection Account, which deposit shall be deemed to have occurred immediately
preceding such purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(c) Notice
of
any termination, 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 Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Terminator, by letter to the
Certificateholders mailed not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trustee 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 Trustee therein
specified.
(d) Upon
presentation and surrender of the Certificates, the Trustee 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 for such Distribution Date.
By
acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(e) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trustee shall promptly following such date cause all funds in the Distribution
Account not distributed in final distribution to Certificateholders to be
withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Servicer (if the Servicer has exercised its right
to
purchase the Mortgage Loans) or the Trustee (in any other case) 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 Residual
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Residual Certificateholders for payment.
SECTION
10.02 Additional
Termination Requirements.
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trustee shall have been furnished with
an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on “prohibited transactions” of the Trust as defined in Section 860F of the Code
or (ii) cause any REMIC constituting part of the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within
90
days prior to the final Distribution Date, the Terminator shall adopt and the
Trustee shall sign a plan of complete liquidation of each REMIC created
hereunder meeting the requirements of a “Qualified Liquidation” under Section
860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Terminator for cash pursuant to the terms of the plan
of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Certificateholders hereby appoint the Trustee as their
attorney in fact to sign such plan) as appropriate and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
SECTION
11.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer 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 or (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;
provided that such action shall not as evidenced by either (a) an Opinion of
Counsel delivered to the Trustee or (b) written or electronic notice to the
Depositor, the Servicer 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, adversely
affect in any material respect the interests of any Certificateholder. No
amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel or Rating Agency confirmation shall be required to address
the effect of any such amendment on any such consenting
Certificateholder.
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer and the Trustee 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 Swap Provider or 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 or distributions which 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
Swap Provider or the Holders of any Class of Certificates (as evidenced by
either (i) an Opinion of Counsel delivered to the Trustee or (ii) written notice
to the Depositor, the Servicer 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)
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 the Rating Agencies.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not 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, to the effect that such amendment will not result in the imposition
of a tax on any REMIC created hereunder constituting part of the Trust Fund
pursuant to the REMIC Provisions or cause any REMIC created hereunder
constituting part of the Trust 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.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties to this
Agreement shall enter into any amendment to this Agreement that could reasonably
be expected to have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment to
this
Agreement that is entered into solely for the purpose of appointing a successor
servicer or trustee) without the prior written consent of the Swap Provider,
which consent shall not be unreasonably withheld, conditioned or
delayed.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the
Servicer (but in no event at the expense of the Trustee), 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 Servicer and each
Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
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 Trustee may prescribe.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this Section 11.01 that affects its rights, duties and immunities under this
Agreement or otherwise.
SECTION
11.02 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 properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Trust, but only upon direction of the 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
11.03 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 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
11.04 Governing
Law; Jurisdiction.
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
SECTION
11.05 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, by facsimile or by express delivery service, to
(a)
in the case of the Servicer, 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000,
Attention: Xxxx X. Xxxxx, MAC X 2302-33, (telecopy number: (000) 000-0000),
with
a copy to General Counsel, 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000, MAC X
2401-06T, (telecopy number: (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Depositor and the Trustee in writing
by the Servicer, (b) in the case of the Trustee, Deutsche Bank National Trust
Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Trust Administration - Soundview 2007-NS1 (telecopy number: (000)
000-0000), or such other address or telecopy number as may hereafter be
furnished to the Depositor and the Servicer in writing by the Trustee, (c)
in
the case of the Credit Risk Manager, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, Attention: General Counsel, or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Servicer, and the
Trustee, (d) in the case of the Depositor, Financial Asset Securities Corp.,
000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal, or such other
address or telecopy number as may hereafter be furnished to the Servicer and
the
Trustee in writing by the Depositor
and (e)
in the case of the Swap Provider and Cap Provider, 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal, or such other address or
telecopy number as may hereafter be furnished to the Servicer, the Trustee,
the
Credit Risk Manager or the Depositor in writing by the Swap Provider/Cap
Provider. 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 the Servicer Event of
Termination 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.
SECTION
11.06 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
11.07 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
11.08 Notice
to
the Rating Agencies.
(a) Each
of
the Trustee and the Servicer 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 Trustee or the Servicer,
as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency copies
of each Statement to Certificateholders described in Section 4.03 hereof and
the
Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
Attestation Report described in Section 3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) Xxxxx’x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) Standard
& Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., 00
Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group.
SECTION
11.09 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
11.10 Benefits
of Agreement.
Each
of
the Swap Provider and the Cap Provider shall be an express third party
beneficiary of this Agreement as if a party hereto to the extent of Swap
Provider's and Cap Provider's rights, respectively, as are explicitly specified
herein.
Other
than as set forth above, 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
11.11 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 Servicer. 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 11.11.
(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.
(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
11.12 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21
and 4.05 of this Agreement is to facilitate compliance by
the Depositor with the provisions of Regulation AB promulgated by the SEC
under the 1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended
from time to time and subject to clarification and interpretive advice as may
be
issued by the staff of the SEC 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 requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good
faith is necessary to comply with the provisions of Regulation AB, 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.
IN
WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above
written.
|
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
|
|||||||||||||
|
By:
|
/s/ Xxxxx X. Xxxxxx | ||||||||||||
|
Name:
|
Xxxxx X. Xxxxxx | ||||||||||||
|
Title:
|
Managing Director | ||||||||||||
|
NATIONSTAR
MORTGAGE, LLC, as Servicer
|
|||||||||||||
|
By:
|
/s/ Xxxxxxx Xxxxxxx | ||||||||||||
|
Name:
|
Xxxxxxx Xxxxxxx | ||||||||||||
|
Title:
|
Senior Vice President | ||||||||||||
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
|
|||||||||||||
|
By:
|
/s/ Xxxxxxx Xxxxxx | ||||||||||||
|
Name:
|
Xxxxxxx Xxxxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
|
By:
|
/s/ Xxxxxx Xxxxx | ||||||||||||
|
Name:
|
Xxxxxx Xxxxx | ||||||||||||
|
Title:
|
Authorized Signatory | ||||||||||||
For
purposes of Sections 6.09, 6.10 and 6.11:
XXXXXXX
FIXED INCOME SERVICES INC.
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
|
Name:
|
Xxxxx X. Xxxxxxx | |
|
Title:
|
President and General Counsel |
|
STATE
OF CONNECTICUT
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
_____ day of March 2007 before me, a notary public in and for said State,
personally appeared _________________________ known to me to be
_______________________ of Financial Asset Securities Corp., 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.
|
Notary
Public
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
_____ day of, March 2007 before me, a notary public in and for said State,
personally appeared ____________________________ known to me to be a
___________________________ of Nationstar Mortgage, LLC, a Delaware limited
liability company 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.
|
Notary
Public
|
|
STATE
OF _____________
|
)
|
ss.:
|
|
|
COUNTY
OF ___________
|
)
|
||
On
the
____ day of March 2007 before me, a notary public in and for said State,
personally appeared _________________________, known to me to be a(n)
_______________________ and _________________________, known to me to be a(n)
_______________________of Deutsche Bank National Trust Company, 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 association, 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.
|
Notary
Public
|
EXHIBIT
A-1
FORM
OF
CLASS A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST AND THE CAP TRUST, ANY
PERSON
ACQUIRING A CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
IN
SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$309,424,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$309,424,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AA6
|
|
Class
|
:
|
A-1
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class A-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class A-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class A-1 Certificate (obtained by dividing the Denomination
of this Class A-1 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class A-1 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class A-1 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust and the Cap Trust, any
person
acquiring a Certificate shall be deemed to have made the representations
in
Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class A-1 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
Class A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Deutsche Bank National Trust Company, as
Trustee
|
|||
[Reverse
of Class A-1Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS A-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST AND THE CAP TRUST, ANY
PERSON
ACQUIRING A CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
IN
SECTION 5.02(d)
OF THE
POOLING AND SERVICING AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$67,608,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$67,608,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AB4
|
|
Class
|
:
|
A-2
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class A-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class A-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class A-2 Certificate (obtained by dividing the Denomination
of this Class A-2 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class A-2 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class A-2 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust and the Cap Trust, any
person
acquiring a Certificate shall be deemed to have made the representations
in
Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class A-2 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
Class A-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Deutsche Bank National Trust Company, as
Trustee
|
|||
[Reverse
of Class A-4 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer, or any such agent shall be affected by any notice
to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS A-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST AND THE CAP TRUST, ANY
PERSON
ACQUIRING A CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
IN
SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$105,880,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$105,880,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AC2
|
|
Class
|
:
|
A-3
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class A-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class A-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, 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 Class A-3 Certificate (obtained by dividing the Denomination
of this Class A-3 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class A-3 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class A-3 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust and the Cap Trust, any
person
acquiring a Certificate shall be deemed to have made the representations
in
Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class A-3 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
Class A-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Deutsche Bank National Trust Company, as
Trustee
|
|||
[Reverse
of Class A-3 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS A-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST AND THE CAP TRUST, ANY
PERSON
ACQUIRING A CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
IN
SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$43,975,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$43,975,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AD0
|
|
Class
|
:
|
A-4
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class A-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class A-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class A-4 Certificate (obtained by dividing the Denomination
of this Class A-4 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class A-4 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class A-4 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust and the Cap Trust, any
person
acquiring a Certificate shall be deemed to have made the representations
in
Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class A-4 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
Class A-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Deutsche Bank National Trust Company, as
Trustee
|
|||
[Reverse
of Class A-4 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS M-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$29,517,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$29,517,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AE8
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-1 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-1 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-1 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
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class M-1 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND CLASS M-1 CERTIFICATES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$25,106,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$25,106,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AF5
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-2 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-2 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-2 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
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class M-2 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES
AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$12,892,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$12,892,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AG3
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-3 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-3 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-3 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
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class M-3 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, AND THE CLASS M-3 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$10,518,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$10,518,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AH1
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-4 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-4 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-4 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
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class M-4 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-5 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND THE CLASS M-4
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$11,535,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$11,535,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000X
XX0
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”) and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class M-5 Certificate is issued
under
and is subject to the terms, provisions and conditions of the Agreement,
to
which Agreement the Holder of this Class M-5 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-5 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
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[REVERSE
OF CLASS M-5 CERTIFICATE]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-6 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$7,464,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$7,464,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AK4
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-6 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-6 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-6 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
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
||
[Reverse
of Class M-6 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-7 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$8,821,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$8,821,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AL2
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-7 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-7 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-7 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
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
||
[Reverse
of Class M-7 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-8 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND
THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$6,107,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$6,107,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AM0
|
|
Class
|
:
|
M-8
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-8
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-8 Certificate (obtained by dividing the Denomination
of this Class M-8 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-8 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-8 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-8 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
Class M-8 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
||
[Reverse
of Class M-8 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-9 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS
M-7 CERTIFICATES AND THE M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE THAT IS AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS IN SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT.
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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$8,142,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$8,142,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AN8
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-9 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-9 Certificate by
virtue
of the acceptance hereof assents and by which such Holder is bound.
Any
transferee of this Certificate that is a Plan subject to ERISA or Section
4975
of the Code, any Person acting, directly or indirectly, on behalf of any
such
Plan or any person using Plan Assets to acquire this Certificate shall be
deemed
to have made the representations in Section 5.02(d) of the
Agreement.
Reference
is hereby made to the further provisions of this Class M-9 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
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
||
[Reverse
of Class M-9 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trustee to issue a new Certificate of
a like
denomination and Class, to the above named assignee and deliver
such
Certificate to the following address:
|
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-10 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE
CLASS
M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES,
THE
CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES
AND THE CLASS M-9 CERTIFICATES,
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED 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”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$11,196,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$11,196,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612Q
AP3
|
|
Class
|
:
|
M-10
|
|
Assumed
Maturity Date
|
:
|
January
2037
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
M-10
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
lien,
fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-10 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-10 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer 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 Class M-10 Certificate (obtained by dividing the Denomination
of this Class M-10 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 Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-10 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-10 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable sate securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act, and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to indemnify the Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-10 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
Class M-10 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Class M-10 Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company
as
Trustee
|
||
[Reverse
of Class M-10 Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS C CERTIFICATES
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 “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Notional Amount
of
this Certificate (“Denomination”)
|
:
|
$678,541,019.12
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$20,356,019.12
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
C
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class C Certificate (obtained
by dividing the Denomination of this Class C Certificate by the Original
Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class C Certificate is
issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class C Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C 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
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class C Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer, the Master Servicer, the Trustee and the Trustee
and of
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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS P CERTIFICATE
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 “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
P
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class P Certificate (obtained
by dividing the Denomination of this Class P Certificate by the Original
Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Nationstar Mortgage, LLC as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class P Certificate is
issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class P Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P 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
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class P Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer, the Master Servicer, the Trustee or any such agent
shall
be affected by any notice to the contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS 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”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100%
|
|
Class
|
:
|
R
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that Greenwich Capital Markets, Inc. 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
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of February 1, 2007
(the
“Agreement”) among the Depositor, Nationstar Mortgage, LLC as servicer (the
“Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
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 Trustee 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 Trustee 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. Pursuant to the Agreement, the Trustee
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
R
Certificate in violation of the restrictions mentioned above.
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 countersigned by an authorized officer of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company
as
Trustee
|
|||
[Reverse
of Class R Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1 Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS R-X CERTIFICATES
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”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R-X
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that Greenwich Capital Markets, Inc. 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
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of February 1, 2007
(the
“Agreement”) among the Depositor, Nationstar Mortgage, LLC as servicer (the
“Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
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 Trustee 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 Trustee 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. Pursuant to the Agreement, the Trustee
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
R-X
Certificate in violation of the restrictions mentioned above.
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 countersigned by an authorized officer of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|||
[Reverse
of Class R-X Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
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
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
FORM
OF
CLASS FL CERTIFICATES
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS FL CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
FL
|
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
Series
2007-NS1
CLASS
FL
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. 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 Financial Asset Securities Corp. (the “Depositor”). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of February
1,
2007 (the “Agreement”) among the Depositor, Nationstar Mortgage, LLC as servicer
(the “Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”) To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. In the event that such a transfer is not to be made pursuant to
Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of
the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee 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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
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 Trustee 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 Trustee 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. Pursuant to the Agreement, the Trustee
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
FL
Certificate in violation of the restrictions mentioned above.
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 countersigned by an authorized officer of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
March __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
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By:
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Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
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[Reverse
of Class FL Certificate]
Soundview
Home Loan Trust 2007-NS1
Asset-Backed
Certificates,
SERIES
2007-NS1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (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 by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent 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 Servicer and the Trustee and of 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.
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 Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee 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.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of
the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in January 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
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FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
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unto
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(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 Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
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Distributions
shall be made, by wire transfer or otherwise, in immediately available
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funds
to
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for
the account of
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Account
number
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or,
if mailed by check, to
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Applicable
statements should be mailed to
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This
information is provided by
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Assignee
named above, or
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its
agent.
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EXHIBIT
B
[RESERVED]
EXHIBIT
C
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated March 8, 2007, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”)
and
Nationstar Mortgage, LLC (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
A. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master Mortgage Loan Purchase
and
Servicing Agreement dated as of January 1, 2007 (the “Purchase Agreement”),
among the Assignor, as initial purchaser (the “Purchaser”),
the
Company, as seller and servicer and Auburn Funding LLC, as seller, and
any
related Assignment and Conveyance Agreements as defined in the Purchase
Agreement, solely insofar as the Purchase Agreement relates to the Mortgage
Loans and (y) other than as provided below with respect to the enforcement
of
representations and warranties, none of the obligations of the Assignor
under
the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
1. From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Soundview Home Loan Trust 2007-NS1 (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of February
1,
2007 (the “Pooling
Agreement”),
among
the Assignee, the Company and Deutsche Bank National Trust Company as trustee
(including its successors in interest and any successor trustees under
the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Company acting on the Trust’s behalf) shall
have all the rights and remedies available to the Assignor, insofar as
they
relate to the Mortgage Loans, under the Purchase Agreement, including,
without
limitation, the enforcement of the document delivery requirements and remedies
with respect to breaches of representations and warranties set forth in
the
Purchase Agreement, and shall be entitled to enforce all of the obligations
of
the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser, only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee and the Company acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way affect
the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations
and Warranties of the Company
2. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b)
The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or
by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c)
No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d)
There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
3. Pursuant
to Article IX of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Section 7.02 (as set forth
on
Schedule I) of the Purchase Agreement were true and correct as of the Closing
Date set forth in the Purchase Agreement, and that the representations
and
warranties set forth in Section 7.01 of the Purchase Agreement, are true
and
correct as of the date hereof as if such representations and warranties
were
made on the date hereof.
4. In
addition, the Company hereby agrees that within 5 Business Days after request
by
the Assignee therefor, it shall provide copies of the Mortgage File and
the
Servicing File to the extent the Company has possession thereof, to the
Assignee
or shall permit examination thereof at the Company’s offices or such other
location as shall otherwise be agreed upon by the Assignee. The Assignee
shall
pay any costs and expenses of the Company (or its agent) incurred in connection
with the provision or examination of any such Mortgage File and Servicing
File
requested pursuant to this Section.
5. The
Assignor hereby makes the following representations, warranties and covenants
as
of the date hereof:
(a) To
the
best of the Assignor’s knowledge, nothing has occurred in the period of time
from the Closing Date (as defined in the Purchase Agreement) to the date
hereof
which would cause such representation and warranties referred to in Section
3
herein to be untrue in any material respect as of the date hereof;
(b) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive and/or usury lending laws;
(c) None
of
the mortgage loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(d) No
Mortgage Loan is a high cost loan or a covered loan, as applicable (as
such
terms are defined in the then current Standard & Poor’s LEVELS Glossary,
Appendix E); and
(e) Information
provided to the rating agencies, including the loan level detail, is true
and
correct according to the rating agency requirements.
Remedies
for Breach of Representations and Warranties
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Company
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they were set forth herein (including without limitation the repurchase
and indemnity obligations set forth therein).
Miscellaneous
7. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Company
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
10. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
12. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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By:
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Name:
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Title:
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FINANCIAL
ASSET SECURITIES CORP.
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By:
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Name:
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Title:
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NATIONSTAR
MORTGAGE, LLC
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By:
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Name:
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Title:
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EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
SCHEDULE
I
Capitalized
terms used in this Schedule I but not defined in this Agreement shall have
the
meanings given to such terms in the Purchase Agreement.
The
Servicer hereby represents and warrants to the Initial Purchaser and to
any
subsequent Purchaser that, as to each Mortgage Loan, as of the related
Closing
Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule is complete,
true
and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct; provided, however,
that in the event of any conflict between the terms of any Confirmation
and this
Agreement, the terms of this Agreement shall control, except to the extent
specifically set forth in the Confirmation;
(iii) Except
as
otherwise agreed to by the Initial Purchaser and disclosed on the related
Mortgage Loan Schedule, all payments required to be made up to the close
of
business on the Closing Date for such Mortgage Loan under the terms of
the
Mortgage Note have been made; neither the Seller nor the Servicer has advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the related Mortgaged Property, directly
or
indirectly, for the payment of any amount required by the Mortgage Note
or
Mortgage; no Mortgage Loan is thirty (30) or more days delinquent as of
the
Closing Date and there has been no delinquency, exclusive of any period
of
grace, in any payment by the Mortgagor thereunder since the origination
of the
Mortgage Loan;
(iv) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in
future
installments or other outstanding charges affecting the related Mortgaged
Property;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the title
insurer, to the extent required by the related policy, and is reflected
on the
related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in
whole or
in part, except in connection with an assumption agreement approved by the title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected
in the
related Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(vii) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant
to
insurance policies providing coverage in an amount not less than the greatest
of
(i) 100% of the replacement cost of all improvements to the Mortgaged Property,
(ii) either (A) the outstanding principal balance of the Mortgage Loan
with
respect to each first lien Mortgage Loan or (B) with respect to each second
lien
Mortgage Loan, the sum of the outstanding principal balance of the related
first
lien mortgage loan and the outstanding principal balance of the second
lien
Mortgage Loan, or (iii) the amount necessary to avoid the operation of
any
co-insurance provisions with respect to the Mortgaged Property, and consistent
with the amount that would have been required as of the date of origination
in
accordance with the Underwriting Guidelines; provided that, such amount
shall
not exceed the amount provided under applicable law. All such insurance
policies
contain a standard mortgagee clause naming the Seller, its successors and
assigns as mortgagee and all premiums thereon have been paid. If the Mortgaged
Property is in an area identified on a Flood Hazard Map or Flood Insurance
Rate
Map issued by the Federal Emergency Management Agency as having special
flood
hazards (and such flood insurance has been made available) a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans and
applicable to any prepayment penalty associated with the Mortgage Loans
at
origination have been complied with;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded,
in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x) The
Mortgage (including any Negative Amortization which may arise thereunder)
is a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan
which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of
current
real property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters
of the
public record as of the date of recording being acceptable to mortgage
lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c)
with
respect to each Mortgage Loan which is indicated by the Seller to be a
second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first
lien on
the Mortgaged Property; and (d) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use, enjoyment,
value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection
with the
Mortgage Loan establishes and creates a valid, existing and enforceable
first or
second lien and first or second priority security interest (in each case,
as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the
Purchaser;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance
with its
terms;
(xii) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(xiii) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage have been paid, and
the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge,
charge,
claim or security interest;
(xv) All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy or a comparable form in the States of California
or Texas
(which, in the case of an Adjustable Rate Mortgage Loan has an adjustable
rate
mortgage endorsement in the form of ALTA 6.0 or 6.1), issued by a title
insurer
acceptable to prudent lenders in the secondary mortgage market and qualified
to
do business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (x)(a) and (b), and with
respect to any second lien Mortgage Loan (c), above) the Seller or the
Servicer,
its successors and assigns as to the first or second priority lien (as
indicated
on the Mortgage Loan Schedule) of the Mortgage in the original principal
amount
of the Mortgage Loan (including, if the Mortgage Loan provides for Negative
Amortization, the maximum amount of Negative Amortization in accordance
with the
Mortgage) and, with respect to any Adjustable Rate Mortgage Loan, against
any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment in the Mortgage
Interest
Rate and Monthly Payment and Negative Amortization provisions of the Mortgage
Note. Additionally, such lender's title insurance policy affirmatively
insures
ingress and egress to and from the Mortgaged Property, and against encroachments
by or upon the Mortgaged Property or any interest therein. The Seller is
the
sole insured of such lender's title insurance policy, and such lender’s title
insurance policy is in full force and effect and will be in full force
and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and
no
prior holder of the related Mortgage, including the Seller, has done, by
act or
omission, anything which would impair the coverage of such lender's title
insurance policy;
(xvii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Seller
nor
the Servicer has waived any default, breach, violation or event of acceleration.
With respect to each second lien Mortgage Loan (i) the related first lien
mortgage loan is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such first lien mortgage
or
the related mortgage note, (iii) no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration thereunder, (iv) either
(A)
the first lien mortgage contains a provision which allows or (B) applicable
law
requires, the mortgagee under the second lien Mortgage Loan to receive
notice
of, and affords such mortgagee an opportunity to cure any default by payment
in
full or otherwise under the first lien mortgage, (v) the related first
lien does
not provide for or permit negative amortization under such first lien Mortgage
Loan, and (vi) either no consent for the Mortgage Loan is required by the
holder
of the first lien or such consent has been obtained and is contained in
the
Mortgage File;
(xviii) There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material (and no rights are outstanding that under law could give rise
to
such lien) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xix) All
improvements which were considered in determining the Appraised Value of
the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xx) [Reserved];
(xxi) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan which
is not a
Negative Amortization Loan, the Mortgage Note is payable on the day of
each
month specified in the related Mortgage Note in Monthly Payments, which,
in the
case of a Fixed Rate Mortgage Loans, are sufficient to fully amortize the
original principal balance over the original term thereof (other than with
respect to a Mortgage Loan identified on the related Mortgage Loan Schedule
as
an interest-only Mortgage Loan during the interest-only period or a Mortgage
Loan which is identified on the related Mortgage Loan Schedule as a Balloon
Mortgage Loan) and to pay interest at the related Mortgage Interest Rate,
and,
in the case of an Adjustable Rate Mortgage Loan, are changed on each Adjustment
Date, and in any case, are sufficient to fully amortize the original principal
balance over the original term thereof (other than with respect to a Mortgage
Loan identified on the related Mortgage Loan Schedule as an interest-only
Mortgage Loan during the interest-only period or a Mortgage Loan which
is
identified on the related Mortgage Loan Schedule as a Balloon Mortgage
Loan) and
to pay interest at the related Mortgage Interest Rate. With respect to
each
Negative Amortization Mortgage Loan, the related Mortgage Note requires
a
Monthly Payment which is sufficient during the period following each Payment
Adjustment Date, to fully amortize the outstanding principal balance as
of the
first day of such period (including any Negative Amortization) over the
then
remaining term of such Mortgage Note and to pay interest at the related
Mortgage
Interest Rate; provided, that the Monthly Payment shall not increase to
an
amount that exceeds 107.5% of the amount of the Monthly Payment that was
due
immediately prior to the Payment Adjustment Date; provided, further, that
the
payment adjustment cap shall not be applicable with respect to the adjustment
made to the Monthly Payment that occurs in a year in which the Mortgage
Loan has
been outstanding for a multiple of five (5) years and in any such year
the
Monthly Payment shall be adjusted to fully amortize the Mortgage Loan over
the
remaining term. With respect to each Mortgage Loan identified on the Mortgage
Loan Schedule as an interest-only Mortgage Loan, the interest-only period
shall
not exceed ten (10) years (or such other period specified on the Mortgage
Loan
Schedule) and following the expiration of such interest-only period, the
remaining Monthly Payments shall be sufficient to fully amortize the original
principal balance over the remaining term of the Mortgage Loan and to pay
interest at the related Mortgage Interest Rate. With respect to each Balloon
Mortgage Loan, the Mortgage Note requires a monthly payment which is sufficient
to fully amortize the original principal balance over a term greater than
the
original term thereof and to pay interest at the related Mortgage Interest
Rate
and requires a final Monthly Payment substantially greater than the preceding
monthly payment which is sufficient to repay the remaining unpaid principal
balance of the Balloon Mortgage Loan at the Due Date of such monthly payment.
The Index for each Adjustable Rate Mortgage Loan is as set forth on the
Mortgage
Loan Schedule. No Mortgage Loan is a Convertible Mortgage Loan. No Balloon
Mortgage Loan has an original stated maturity of less than seven (7)
years;
The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if
any,
since origination, have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Servicer and any predecessor servicer in accordance
with the terms of the Mortgage Note and Accepted Servicing Practices. With
respect to escrow deposits and Escrow Payments, if any, all such payments
are in
the possession of, or under the control of, the Servicer and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Servicer have been capitalized under
any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Servicer for any work on a Mortgaged Property
which has not been completed; provided that, certain Insurance Proceeds
may be
held by the Servicer in escrow pending the completion of repairs which
are
required to be made to a Mortgaged Property in connection with the payment
of
such Insurance Proceeds;
(xxii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiii) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure.
The
Mortgaged Property is not subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or other exemption available to
the
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee's sale or the right to foreclose the Mortgage. The Mortgagor
has not
notified the Servicer and the Servicer has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers’ Civil Relief
Act;
(xxiv) The
Mortgage Loan was underwritten in accordance with the underwriting standards
of
Nationstar Mortgage LLC in effect at the time the Mortgage Loan was originated;
and the Mortgage Note and Mortgage are on forms acceptable to prudent lenders
in
the secondary market;
(xxv) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxvi) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of Xxxxxx Xxx and Xxxxxxx
Mac,
was on
appraisal form 1004 or form 2055 with an interior inspection and was made
and
signed, prior to the approval of the Mortgage Loan application, by a qualified
appraiser, duly appointed by the Servicer, who had no interest, direct
or
indirect in the Mortgaged Property or in any loan made on the security
thereof,
whose compensation is not affected by the approval or disapproval of the
Mortgage Loan and who met the minimum qualifications of Xxxxxx Mae and
Xxxxxxx
Mac.
Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(xxvii) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Purchaser to the trustee under the deed of trust, except
in
connection with a trustee's sale after default by the Mortgagor;
(xxviii) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(a)
paid or partially paid with funds deposited in any separate account established
by the Servicer, the Mortgagor, or anyone on behalf of the Mortgagor, (b)
paid
by any source other than the Mortgagor or (c) contains any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a
shared
appreciation or other contingent interest feature;
(xxix) The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by applicable law with respect to the
making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans,
and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage
Loans and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxx) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property (other than a construction to permanent loan that
has
converted to a permanent loan in accordance with Xxxxxx Mae guidelines;
or (b)
facilitating the trade-in or exchange of a Mortgaged Property;
(xxxi) The
Servicer has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that can reasonably be expected to cause the Mortgage Loan to
be an
unacceptable investment, cause the Mortgage Loan to become delinquent,
or
adversely affect the value of the Mortgage Loan;
(xxxii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 100%. No
Mortgage
Loan is subject to a lender paid primary mortgage insurance policy;
(xxxiii) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to
all
occupied portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(xxxiv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in
the
application of any insurance in relation to such Mortgage Loan;
(xxxv) The
Assignment of Mortgage is in recordable form, except for the name of the
assignee which is blank, and is acceptable for recording under the laws
of the
jurisdiction in which the Mortgaged Property is located;
(xxxvi) Any
principal advances made to the Mortgagor prior to the Cut-off Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) lien priority by a title insurance policy,
an
endorsement to the policy insuring the mortgagee's consolidated interest.
The
consolidated principal amount does not exceed the original principal amount
of
the Mortgage Loan plus any Negative Amortization;
(xxxvii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or
a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Xxx and Xxxxxxx
Mac;
(xxxviii) The
source of the down payment with respect to each Mortgage Loan has been
fully
verified by the Servicer;
(xxxix) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xl) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller or the Servicer nor, to the Seller’s or the
Servicer’s knowledge, the related Mortgagor, has received any notice of any
violation or potential violation of such law;
(xli) The
Servicer shall, at its own expense, cause each Mortgage Loan to be covered
by a
Tax Service Contract which is assignable to the Purchaser or its designee;
provided however, that if the Servicer fails to purchase such Tax Service
Contract, the Servicer shall be required to reimburse the Purchaser for
all
costs and expenses incurred by the Purchaser in connection with the purchase
of
any such Tax Service Contract;
(xlii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by
such
Flood Zone Service Contract, the Servicer agrees to purchase such Flood
Zone
Service Contract;
(xliii) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership
and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an APR or total
points and fees that are equal to or exceeds the HOEPA thresholds (as defined
in
12 CFR 226.32 (a)(1)(i) and (ii)), (b) a “high cost” mortgage loan, “covered”
mortgage loan (excluding home loans defined as “covered home loans” pursuant to
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act), “high risk home” mortgage loan, or “predatory” mortgage loan or
any other comparable term, no matter how defined under any federal, state
or
local law, (c) subject to any comparable federal, state or local statutes
or
regulations, or any other statute or regulation providing for heightened
regulatory scrutiny or assignee liability to holders of such mortgage loans,
or
(d) a High Cost Loan or Covered Loan, as applicable (as such terms are
defined
in the current Standard & Poor’s LEVELS® Glossary Revised, Appendix
E);
(xliv) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan;
(xlv) The
debt-to-income ratio of the related Mortgagor was not greater than 60%
at the
origination of the related Mortgage Loan;
(xlvi) No
Mortgagor was required to purchase any credit insurance product (e.g.,
life,
mortgage, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g.,
life, mortgage, disability, accident, unemployment or health insurance)
or debt
cancellation agreement in connection with the origination of the Mortgage
Loan.
No proceeds from any Mortgage Loan were used to purchase single premium
credit
insurance policies or debt cancellation agreements as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(xlvii) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xlviii) The
Mortgage contains an enforceable provision for the acceleration of the
payment
of the unpaid principal balance of the Mortgage Loan in the event that
the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(xlix) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa,
Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity, and in all other respects, complies
with all of the material requirements of any such applicable laws;
(l) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment
Charge
is permissible, enforceable and collectable in accordance with its terms
upon
the Mortgagor’s full and voluntary principal payment under applicable
law;
(li) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the
Servicer
has not received notification from a Mortgagor that a prepayment in full
shall
be made after the Closing Date;
(lii) No
Mortgage Loan is secured by cooperative housing, commercial property or
mixed
use property;
(liii) As
of the
related Closing Date, each Mortgage Loan is eligible for sale in the secondary
market or for inclusion in a Securitization Transaction without unreasonable
credit enhancement;
(liv) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Charge. With respect to any Mortgage Loan that
contains
a provision permitting imposition of a premium upon a prepayment prior
to
maturity: (a) the Mortgage Loan provides some benefit to the Mortgagor
(e.g. a
rate or fee reduction) in exchange for accepting such Prepayment Charge;
(b) the
Mortgage Loan’ s originator had a written policy of offering the Mortgagor, or
requiring third-party brokers to offer the Mortgagor, the option of obtaining
a
Mortgage Loan that did not require payment of such a Prepayment Charge;
(c) the
Prepayment Charge was adequately disclosed to the Mortgagor pursuant to
applicable state and federal law; (d) the duration of the Prepayment Charge
shall not exceed three (3) years from the date of the Mortgage Note; and
(e)
such Prepayment Charge shall not be imposed in any instance where the Mortgage
Loan is accelerated or paid off in connection with the workout of a delinquent
Mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of
such
Prepayment Charge;
(lv) Nationstar
Mortgage LLC has complied with all applicable anti-money laundering laws
and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); Nationstar Mortgage LLC has
established an anti-money laundering compliance program as required by
the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of
the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the Mortgaged Property, and maintains, and will maintain, sufficient
information to identify and verify the identification of the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. No Mortgage Loan
is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or the regulations promulgated by the Office of Foreign Assets Control
of the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations
nor
listed as a “specially designated national or blocked person” for purposes of
the OFAC Regulations;
(lvi) With
respect to any Mortgage Loan, the Mortgagor was assigned the highest credit
grade available with respect to a mortgage loan product offered by such
Mortgage
Loan’s originator, based on a comprehensive assessment of risk factors,
including the Mortgagor’s credit history;
(lvii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit.
The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely
payments
on the Mortgage Loan;
(lviii) With
respect to each Mortgage Loan, the Servicer has fully and accurately furnished
complete information (i.e., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
on a monthly basis and, for each Mortgage Loan, the Servicer will furnish,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company, on a monthly
basis;
(lix) All
points and fees related to each Mortgage Loan were disclosed in writing
to the
related Mortgagor in accordance with applicable state and federal laws
and
regulations. Except to the extent specified on the Mortgage Loan Schedule,
no
related Mortgagor was charged “points and fees” (whether or not financed) in an
amount greater than (a) $1,000 or (b) 5% of the principal amount of such
loan,
whichever is greater, such 5% limitation is calculated in accordance with
Xxxxxx
Mae’s anti-predatory lending requirements as set forth in the Xxxxxx Mae Guides.
For purposes of this representation, “points and fees” (a) include origination,
underwriting, broker and finder’s fees and other charges that the lender imposed
as a condition of making the loan, whether they are paid to the lender
or a
third party, and (b) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the mortgage (such
as
attorneys’ fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and tax certifications,
and home inspections); the cost of mortgage insurance or credit-risk price
adjustments; the costs of title, hazard, and flood insurance policies;
state and
local transfer taxes or fees; escrow deposits for the future payment of
taxes
and insurance premiums; and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of
the loan
amount. All points, fees and charges (including finance charges) and whether
or
not financed, assessed, collected or to be collected in connection with
the
origination and servicing of each Mortgage Loan were disclosed in writing
to the
related Mortgagor in accordance with applicable state and federal laws
and
regulations;
(lx) The
Servicer will transmit full-file credit reporting data for each Mortgage
Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Servicer agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxi) With
respect to any Mortgage Loan which is secured by manufactured
housing,
if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor upon
the
origination of the Mortgage Loan. With respect to any second lien Mortgage
Loan,
such lien is on a one- to four-family residence that is (or will be) the
principal residence of the Mortgagor upon the origination of the second
lien
Mortgage Loan;
(lxii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.).
Each Mortgage Loan secured by property located within the Xxxx County,
Illinois
anti-predatory lending Pilot Program area (i.e., ZIP Codes 60620, 60621,
60623,
60628, 60629, 60632, 60636, 60638, 60643 and 60652) complies with the recording
requirements outlined in Illinois House Xxxx 4050 and Senate Xxxx 304 effective
September 1, 2006;
(lxiii) No
Mortgage Loan is secured by real property or secured by a manufactured
home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in
the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lxiv) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(lxv) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and
(c) has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(lxvi) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(lxvii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(lxviii) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(lxix) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(lxx) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(lxxi) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(lxxii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(lxxiii) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
(lxxiv) With
respect to any Loan for which a mortgage loan application was submitted
by the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property
in the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per
annum has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(lxxv) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7,
2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of
State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either
(1) (a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the
related
Mortgage Loan as of the fifteenth day of the month immediately preceding
the
month in which the application for the extension of credit was received
by the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at
any time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest,"
as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts
House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects
with the
laws of the Commonwealth of Massachusetts;
(lxxvi) No
Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(lxxvii) The
Mortgagee has not made or caused to be made any payment in the nature of
an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxviii) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxxix) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN
is
accurately provided on the Mortgage Loan Schedule. The related Assignment
of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lxxx) With
respect to each MOM Loan, Seller has not received any notice of liens or
legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS; and
(lxxxi) With
respect to each second lien Mortgage Loan, either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File.
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
As
previously filed on March 2, 2007.
EXHIBIT
E
REQUEST
FOR RELEASE (DEUTSCHE BANK)
|
To:
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of February 1, 2007, among Financial
Asset Securities Corp. as Depositor, Nationstar Mortgage, LLC as
Servicer
and Deutsche Bank National Trust Company, a national banking association,
as Trustee
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s Mortgage File Or the
Mortgage Loan described below, for the reason indicated. Any payments received
in connection with this Request for Release of documents have been or will
be
deposited into the Collection Account for the benefit of the Trust.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_________1.
|
Mortgage
Paid in Full
|
|
|
_________2.
|
Foreclosure
|
|
|
_________3.
|
Substitution
|
|
|
_________4.
|
Other
Liquidation (Repurchases, etc.)
|
|
|
_________5.
|
Nonliquidation
|
Reason:_____________________
|
Address
to which Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
|
|
(authorized
signer)
|
|
|
Issuer:
|
|
|
Address:
|
|
|
Date:
|
|
Trustee
Deutsche
Bank National Trust Company
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature
|
Date
|
|
|
Documents
returned to Trustee:
|
||
|
Trustee
|
Date
|
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
________________
[Date]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of February 1, 2007, among Financial
Asset Securities Corp. as Depositor, Nationstar Mortgage, LLC as
Servicer
and Deutsche Bank National Trust Company, a national banking association,
as Trustee
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
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 the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File includes any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee] [THE BANK OF NEW YORK
TRUST
COMPANY, N.A., as Custodian]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
________________
[Date]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of February 1, 2007 among Financial Asset Securities Corp., as
Depositor,
Nationstar Mortgage, LLC as Servicer and Deutsche Bank National
Trust
Company, as Trustee with respect to Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates, Series
2007-NS1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of 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 Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items 1 and 3 of the definition of
Mortgage Loan Schedule in the Pooling and Servicing Agreement accurately
reflects information in the Mortgage File.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee] [THE BANK OF NEW YORK
TRUST
COMPANY, N.A., as Custodian]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Soundivew
Home Loan Trust 2007-NS1,
Asset-Backed
Certificates Series 2007-NS1
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of February 1, 2007 among Financial Asset
Securities Corp., as Depositor, Nationstar Mortgage, LLC as Servicer and
Deutsche Bank National Trust Company, as Trustee, we hereby acknowledge the
receipt of the original Mortgage Notes (a copy of which is attached hereto
as
Exhibit 1) with any exceptions thereto listed on Exhibit 2.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee] [THE BANK OF NEW YORK
TRUST
COMPANY, N.A., as Custodian]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
G
FORM
OF
CAP ALLOCATION AGREEMENT
CAP
ALLOCATION AGREEMENT
This
Cap
Allocation Agreement, dated as of March 8, 2007 (this “Agreement”), between
Deutsche Bank National Trust Company (“Deutsche Bank”), as cap trustee for the
cap trust (in such capacity, the “Cap Trustee”) and as trustee under the Pooling
and Servicing Agreement, as hereinafter defined (in such capacity, the
“Trustee”) and Greenwich
Capital Financial Products, Inc. (“GCFP”).
WHEREAS,
Deutsche Bank, on behalf of a separate trust established hereunder which
holds
an Interest Rate Cap Agreement (the “Cap Agreement”), a copy of which is
attached hereto as Exhibit A, between the Cap Trustee,
on
behalf of the Cap Trust
and The
Royal Bank of Scotland plc (the “Cap Provider”) is a counterparty to the Cap
Agreement;
and
WHEREAS,
it is desirable to irrevocably appoint the Cap Trustee, and the Cap Trustee
desires to accept such appointment, to receive and distribute funds payable
by
the Cap Provider to the Cap Trustee, on behalf of the Cap Trust under the
Cap
Agreement as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of February 1, 2007 (the “Pooling and Servicing Agreement”), among
Financial Asset Securities Corp., as Depositor, Nationstar Mortgage, LLC,
as
servicer and the Trustee, relating to the Soundview Home Loan Trust 2007-NS1
(the “Trust”), Asset-Backed Certificates, Series 2007-NS1 (the “Certificates”),
or in the related Indenture as the case may be, as in effect on the date
hereof.
2. Cap
Trust.
There
is hereby established a separate trust (the “Cap Trust”), into which the Cap
Trustee shall deposit the Cap Agreement. The Cap Trust shall be maintained
by
the Cap Trustee. The sole assets of the Cap Trust shall be the Cap Agreement
and
the Cap Trust Account.
3. Cap
Trustee.
(a) The
Cap
Trustee, on behalf of the Cap Trust, is hereby irrevocably appointed to
receive
all funds paid to the Cap Trustee by the Cap Provider, or its successors
in
interest under the Cap Agreement (including any Cap Termination Payment)
and the
Cap Trustee accepts such appointment and hereby agrees to receive such
amounts,
deposit such amounts into the Cap Trust Account and to distribute on each
Distribution Date such amounts in the following order of priority:
(i) first,
for deposit into the Cap Account (established under the Pooling and Servicing
Agreement), an amount equal to the sum of the following amounts remaining
outstanding after distribution of the Net Monthly Excess Cashflow and any
Net
Swap Payments received under the Interest Rate Swap Agreement with the
Trust:
(A) Unpaid Interest Shortfall Amounts, (B) Net WAC Rate Carryover Amounts;
(C)
an
amount
necessary to maintain or restore the Overcollateralization Target Amount;
and
(D) any
Allocated Realized Loss Amounts;
(ii) second,
to GCFP, or its designee, any amounts remaining after payment of (i) above,
provided,
however,
upon the
issuance of notes by an issuer (the “NIM Trust”), secured by all or a portion of
the Class C Certificates and the Class P Certificates (the “NIM Notes”), GCFP,
or its designee, hereby instructs the Cap Trustee to make any payments
under
this clause 3(a)(ii):
(A) to
the
Indenture Trustee for the NIM Trust, for deposit into the Note Account
(each as
defined in the related Indenture), for distribution in accordance with
the terms
of the Indenture until satisfaction and discharge of the Indenture;
and
(B) after
satisfaction and discharge of the Indenture, to the Holders of the Class
C
Certificates, pro
rata
based on
the outstanding Notional Amount of each such Certificate.
(b) The
Cap
Trustee agrees to hold any amounts received from the Cap Provider in trust
upon
the terms and conditions and for the exclusive use and benefit of the Trustee
and the Indenture Trustee, as applicable (in turn for the benefit of the
Certificateholders, the Noteholders, GCFP and the NIMS Insurer, if any)
as set
forth herein. The rights, duties and liabilities of the Cap Trustee in
respect
of this Agreement shall be as follows:
(i) The
Cap
Trustee shall have the full power and authority to do all things not
inconsistent with the provisions of this Agreement that may be deemed advisable
in order to enforce the provisions hereof. The Cap Trustee shall not be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Cap Trustee shall not be required to take any action to
exercise
or enforce any of its rights or powers hereunder which, in the opinion
of the
Cap Trustee, shall be likely to involve expense or liability to the Cap
Trustee,
unless the Cap Trustee shall have received an agreement satisfactory to
it in
its sole discretion to indemnify it against such liability and
expense.
(ii) The
Cap
Trustee shall not be liable with respect to any action taken or omitted
to be
taken by it in good faith in accordance with the direction of any party
hereto
or the NIMS Insurer, if any, or otherwise as provided herein, relating
to the
time, method and place of conducting any proceeding for any remedy available
to
the Cap Trustee or exercising any right or power conferred upon the Cap
Trustee
under this Agreement.
(iii) The
Cap
Trustee may perform any duties hereunder either directly or by or through
agents
or attorneys of the Cap Trustee. The Cap Trustee shall not be liable for
the
acts or omissions of its agents or attorneys so long as the Cap Trustee
chose
such Persons with due care.
4. Cap
Trust Account.
The Cap
Trustee shall segregate and hold all funds received from the Cap Provider
(including any Cap Termination Payment) separate and apart from any of
its own
funds and general assets and shall establish and maintain in the name of
the Cap
Trustee one or more segregated accounts (the “Cap Trust Account”).
5. [Reserved]
6. Representations
and Warranties of Deutsche Bank.
Deutsche Bank represents and warrants as follows:
(a) Deutsche
Bank is duly organized and validly existing as a national banking association
under the laws of the United States and has all requisite power and authority
to
execute and deliver this Agreement, to perform its obligations as Cap Trustee
hereunder.
(b) The
execution, delivery and performance of this Agreement by Deutsche Bank
as
Trustee have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by Deutsche Bank as Cap
Trustee
and the Trustee and is enforceable against Deutsche Bank in such capacities
in
accordance with its terms, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and
other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law).
7. Replacement
of Cap Trustee.
Any
corporation, bank, trust company or association into which the Cap Trustee
may
be merged or converted or with which it may be consolidated, or any corporation,
bank, trust company or association resulting from any merger, conversion
or
consolidation to which the Cap Trustee shall be a party, or any corporation,
bank, trust company or association succeeding to all or substantially all
the
corporate trust business of the Cap Trustee, shall be the successor of
the Cap
Trustee hereunder, without the execution or filing of any paper or any
further
act on the part of any of the parties hereto, except to the extent that
assumption of its duties and obligations, as such, is not effected by operation
of law.
No
resignation or removal of the Cap Trustee and no appointment of a successor
Cap
Trustee shall become effective until the appointment by GCFP, or its designee,
of a successor Cap Trustee acceptable to the NIMS Insurer, if any. Any
successor
Cap Trustee shall execute such documents or instruments necessary or appropriate
to vest in and confirm to such successor Cap Trustee all such rights and
powers
conferred by this Agreement.
The
Cap
Trustee may resign at any time by giving written notice thereof to the
other
parties hereto with a copy to the NIMS Insurer, if any. If a successor
cap
trustee shall not have accepted the appointment hereunder within 30 days
after
the giving by the resigning Cap Trustee of such notice of resignation,
the
resigning Cap Trustee may petition any court of competent jurisdiction
for the
appointment of a successor Cap Trustee acceptable to the NIMS Insurer,
if
any.
In
the
event of a resignation or removal of the Cap Trustee, GCFP, or its designee,
shall promptly appoint a successor Cap Trustee acceptable to the NIMS Insurer,
if any. If no such appointment has been made within 10 days of the resignation
or removal, the NIMS Insurer, if any, may appoint a successor Cap
Trustee.
8. Cap
Trustee Obligations.
Whenever
the Cap Trustee, on behalf of the Cap Trust, as a party to the Cap Agreement,
has the option or is requested in such capacity, whether such request is
by the
Cap Provider, to take any action or to give any consent, approval or waiver
that
it is on behalf of the Cap Trust entitled to take or give in such capacity,
including, without limitation, in connection with an amendment of such
agreement
or the occurrence of a default or termination event thereunder, the Cap
Trustee
shall promptly notify the parties hereto and the NIMS Insurer, if any,
of such
request in such detail as is available to it and, shall, on behalf of the
parties hereto and the NIMS Insurer, if any, take such action in connection
with
the exercise and/or enforcement of any rights and/or remedies available
to it in
such capacity with respect to such request as GCFP, or its designee, or
the NIMS
Insurer, if any, shall direct in writing; provided that if no such direction
is
received prior to the date that is established for taking such action or
giving
such consent, approval or waiver (notice of which date shall be given by
the Cap
Trustee to the parties hereto and the NIMS Insurer, if any), the Cap Trustee
may
abstain from taking such action or giving such consent, approval or
waiver.
The
Cap
Trustee shall forward to the parties hereto and the NIMS Insurer, if any,
on the
Distribution Date following its receipt thereof copies of any and all notices,
statements, reports and/or other material communications and information
(collectively, the “Cap Reports”) that it receives in connection with the Cap
Agreement or from the counterparty thereto.
9. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
(b) Any
action or proceeding against any of the parties hereto relating in any
way to
this Agreement may be brought and enforced in the courts of the State of
New
York sitting in the borough of Manhattan or of the United States District
Court
for the Southern District of New York and the Cap Trustee irrevocably submits
to
the jurisdiction of each such court in respect of any such action or proceeding.
The Cap Trustee waives, to the fullest extent permitted by law, any right
to
remove any such action or proceeding by reason of improper venue or inconvenient
forum.
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of GCFP and the NIMS Insurer, if
any.
(d) This
Agreement may not be assigned or transferred without the prior written
consent
of GCFP and the NIMS Insurer, if any; provided, however, the parties hereto
acknowledge and agree to the assignment of the rights of GCFP, or its designee,
pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile transmission),
and all
such counterparts taken together shall be deemed to constitute one and
the same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
10. Third-Party
Beneficiary. Each
of
the Trustee, GCFP or its designee and the Indenture Trustee, if any,
shall be
deemed a third-party beneficiary of this Agreement to the same extent as
if it
were a party hereto, and shall have the right to enforce the provisions
of this
Agreement. If any default occurs on the part of the Cap Provider under
the Cap
Agreement in the making of a payment due under the Cap Agreement or in
any other
obligation of the Cap Provider under the Cap Agreement, the Cap Trustee
may and,
upon the request of the Trustee, GCFP or its designee or the Indenture
Trustee,
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
11. Cap
Trustee and Trustee Rights.
The Cap
Trustee shall be entitled to the same rights, protections and indemnities
afforded to the Trustee under the Pooling and Servicing Agreement, and
the
Indenture Trustee under the Indenture, in each case as if specifically
set forth
herein with respect to the Cap Trustee.
The
Trustee shall be entitled to the same rights, protections and indemnities
afforded to the Trustee under the Pooling and Servicing Agreement as if
specifically set forth herein with respect to the Cap Trustee.
12. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement
is
executed and delivered by the Trustee, not in its individual capacity but
solely
as Trustee under the Pooling and Servicing Agreement. Notwithstanding any
other
provisions of this Agreement, the obligations of the Trustee under this
Agreement are non-recourse to the Trustee, its assets and its property,
and
shall be payable solely from the assets of the Trust Fund, and following
realization of such assets, any claims of any party hereto shall be extinguished
and shall not thereafter be reinstated. No recourse shall be had against
any
principal, director, officer, employee, beneficiary, shareholder, partner,
member, Trustee, agent or affiliate of the Trustee or any person owning,
directly or indirectly, any legal or beneficial interest in the Trustee,
or any
successors or assigns of any of the foregoing (the “Exculpated Parties”) for the
payment of any amount payable under this Agreement. The parties hereto
shall not
enforce the liability and obligations of the Trustee to perform and observe
the
obligations contained in this Agreement by any action or proceeding wherein
a
money judgment establishing any personal liability shall be sought against
the
Trustee, subject to the following sentence, or the Exculpated Parties.
The
agreements in this paragraph shall survive termination of this Agreement
and the
performance of all obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
not
in its individual capacity but solely as Cap Trustee under this
Agreement
|
|
|
By:
|
|
|
Name:
Title:
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
not
in its individual capacity but solely as Trustee under the Pooling
and
Servicing Agreement
|
|
|
By:
|
|
|
Name:
Title:
|
|
|
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
A
INTEREST
RATE CAP AGREEMENT
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 ____________________________, successor by
merger
to _________________________ (“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 presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Deutsche Bank National
Trust
Company, as trustee on behalf of Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates Series 2007-NS1, to accept the transfer of the
above
described loan from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company and Financial Asset
Securities Corp. harmless for any losses incurred by such parties resulting
from
the above described promissory 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 __________________________.
EXHIBIT
I
FORM
OF
LIMITED POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST ENDORSEE,
AS
APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the “Undersigned”), pursuant to that Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) among Financial
Asset Securities Corp. (the “Owner”), Deutsche Bank National Trust Company and
Nationstar Mortgage, LLC (“Nationstar”), hereby constitutes and appoints
Nationstar, by and through Nationstar’s officers, the Undersigned's true and
lawful Attorney-in-Fact, in the Undersigned's name, place and stead, as their
interests may appear, and for the Undersigned's respective benefit, in
connection with all Mortgage Loans serviced by Nationstar pursuant to the
Pooling and Servicing Agreement, for the purpose of performing all acts and
executing all documents in the name of the Undersigned as may be customarily
and
reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages, deeds of trust or security
instrument (each a “Mortgage” or a “Deed of Trust” respectively) and promissory
notes secured thereby (each a “Mortgage Note”) for which the Undersigned is
acting as Servicer pursuant to the Pooling and Servicing Agreement (whether
the
Undersigned is named therein as mortgagee or beneficiary or has become mortgagee
by virtue of endorsement of the Mortgage Note secured by any such Mortgage
or
Deed of Trust) all subject to the terms of the related Pooling and Servicing
Agreement.
This
appointment shall apply to the following enumerated transactions
only:
1. The
modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recording is for the purpose of correcting the Mortgage
or
Deed of Trust to conform same to the original intent of the parties thereto
or
to correct title errors discovered after such title insurance was issued
and
said modification or re-recording, in either instance, does not adversely
affect
the lien of the Mortgage or Deed of Trust as insured.
2. The
subordination of the lien of a Mortgage or Deed of Trust to an easement in
favor
of a public utility company or a governmental agency or authority thereunder
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfaction/release, partial reconveyances or the
execution of requests to trustees to accomplish same.
3. The
conveyance of the properties to the mortgage insurer, or the closing of the
title to the property to be acquired as real estate owned, or conveyance
of
title to real estate owned.
4. The
completion of loan assumption agreements.
5. The
full
satisfaction/release of a Mortgage or Deed of Trust or full reconveyance
upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
6. The
assignment of any Mortgage or Deed of Trust and the related Mortgage Note,
in
connection with the repurchase of the mortgage loan secured and evidenced
thereby.
7. The
full
assignment of a Mortgage or Deed of Trust upon payment and discharge of all
sums
secured thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related Mortgage Note.
8. With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a
deed in
lieu of foreclosure, or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a) the
substitution of trustee(s) serving under a Deed of Trust, in accordance with
state law and the Deed of Trust;
b) the
preparation and issuance of statements of breach or
non-performance;
c) the
preparation and filing of notices of default and/or notices of
sale;
d) the
cancellation/rescission of notices of default and/or notices of
sale;
e) the
taking of a deed in lieu of foreclosure; and
f) the
preparation and execution of such other documents and performance of such
other
actions as may be necessary under the terms of the Mortgage, Deed of Trust
or
state law to expeditiously complete said transactions in paragraphs 8(a)
through
8(e) above.
9. The
full
assignment of a Mortgage or Deed of Trust upon sale of a loan pursuant to
a
mortgage loan sale agreement for the sale of a loan or pool of loans, including,
without limitation, the assignment of the related Mortgage Note.
The
Undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this
Limited
Power of Attorney, each subject to the terms and conditions set forth in
the
related Pooling and Servicing Agreement and in accordance with the standard
of
care applicable to the servicer in the Pooling and Servicing Agreement as
fully
as the undersigned might or could do, and hereby does ratify and confirm
to all
that said Attorney-in-Fact shall lawfully do or cause to be done by authority
hereof. This Limited Power of Attorney shall be effective as of [SERVICING
TRANSFER EFFECTIVE DATE].
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
Nationstar to the Owner under the Pooling and Servicing Agreement, or (ii)
be
construed to grant Nationstar the power to initiate or defend any suit,
litigation or proceeding in the name of the Undersigned except as specifically
provided for herein or under the Pooling and Servicing Agreement.
Nationstar
hereby agrees to indemnify and hold the Undersigned and its directors, officers,
employees and agents harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever incurred by reason
or
result of or in connection with the exercise by Nationstar of the powers
granted
to it hereunder. The foregoing indemnity shall survive the termination of
this
Limited Power of Attorney and the Pooling and Servicing Agreement or the
earlier
resignation or removal of the Undersigned under the Pooling and Servicing
Agreement.
Any
third
party without actual notice of fact to the contrary may rely upon the exercise
of the power granted under this Limited Power of Attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect
and
has not been revoked unless an instrument of revocation has been made in
writing
by the undersigned, and such third party put on notice thereof. This Limited
Power of Attorney shall be in addition to and shall not revoke or in any
way
limit the authority granted by any previous power of attorney executed by
the
Undersigned.
IN
WITNESS WHEREOF, ____________________ pursuant to the Pooling and Servicing
Agreement, has caused its corporate seal to be hereto affixed and these presents
to be signed and acknowledged in its name and behalf by ______________________,
its duly elected and authorized _________________________ this ___ day of
_________________, 2007.
By:_____________________________________
Name:
__________________________________
Title:
___________________________________
Acknowledged
and Agreed
Nationstar
Mortgage, LLC
By:_____________________________________
Name:
Title:
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-NS1
|
Re:
|
Soundview
Home Loan Trust 2007-NS1,
Asset-Backed
Certificates, Series 2007-NS1
|
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) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) 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
(g) below), (f) 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 (g) 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 satisfactory
to
the addressees of this Certificate 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]
|
|
Authorized
Officer
|
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-NS1
|
Re:
|
Soundview
Home Loan Trust 2007-NS1,
Asset-Backed
Certificates, Series 2007-NS1
|
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)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting
on
behalf of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any
person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute
a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. We
are aware that the sale to us is being made in reliance on Rule 144A. We
are
acquiring the Certificates for our own account or for resale pursuant to
Rule
144A and further, understand that such Certificates may be resold, pledged
or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account
of a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
|
Very
truly yours,
|
|
[NAME
OF TRANSFEREE]
|
|
Authorized
Officer
|
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
_________
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_________
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Broker-Dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
_________
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
_________
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
_________
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_________
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_________
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
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.
ANNEX
2 TO EXHIBIT J
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 Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$___________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
|
Print
Name of Buyer or Adviser
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||||||
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By:
|
||||||
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Name:
|
||||||
|
Title:
|
||||||
|
IF
AN ADVISER:
|
||||||
|
Print
Name of Buyer
|
||||||
|
Date:
|
||||||
EXHIBIT
K
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
SOUNDVIEW
HOME LOAN TRUST 2007-NS1
ASSET-BACKED
CERTIFICATES, SERIES 2007-NS1
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of, the proposed Transferee of an Ownership Interest
in a Residual Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement dated as of February 1, 2007
(the “Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Nationstar Mortgage, LLC as servicer (the “Servicer”)
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is ___________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
[_] The
present value of the anticipated tax liabilities associated with holding
the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
[_] The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
the
Certificate will only be taxed in the United States;
|
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a
person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations; and
|
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
[_] None
of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I
of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
|
[NAME
OF TRANSFEREE]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
[Corporate
Seal]
|
|
ATTEST:
|
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
NOTARY
PUBLIC
|
|
My
Commission expires the __ day
of
_________, 20__
|
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-NS1
|
Re:
|
Soundview
Home Loan Trust 2007-NS1,
Asset-Backed
Certificates, Series 2007-NS1
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act,
(b) we
have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act,
(c) to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
|
|
TRANSFEROR
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
_____________,
20__
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-NS1
|
|
Re:
|
Soundview
Home Loan Trust 2007-NS1,
Asset-Backed
Certificates Series 2007-NS1
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Soundview Home
Loan Trust 2007-NS1, Asset-Backed Certificates Series 2007-NS1, Class
[C][P][R[-X]] (the “Certificates”), issued pursuant to a Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) dated as of February 1, 2007
among Financial Asset Securities Corp. as depositor (the “Depositor”),
Nationstar Mortgage, LLC as servicer (the “Servicer”) and Deutsche Bank National
Trust Company as trustee (the “Trustee”). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in the Pooling
and
Servicing Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with the Depositor, the Trustee and the Servicer the
following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R. § 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets of
a
Plan within the meaning of the DOL regulation at 29 C.F.R. §
2510.3-101.
|
Very
truly yours,
|
|
|
[Transferee]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
N-1
FORM
CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re:
Soundview
Home Loan Trust, Series 2007-NS1
Asset
Backed Certificates, Series 2007-NS1
Certification
I,
[identify the certifying individual], certify that:
l. I
have
reviewed this report on Form 10-K, and all reports on Form 10-D required
to be
filed in respect of the period included in the year covered by this report
in
Form 10-K of Soundview Home Loan Trust 2007-NS1 (the “Exchange Act periodic
reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and upon the annual compliance statement required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange
Act
periodic reports, the Servicer has fulfilled each of its obligations under
the
pooling and servicing agreement; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except
as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Nationstar Mortgage, LLC and Deutsche
Bank National Trust Company.
FINANCIAL
ASSET SECURITIES CORP.
By:____________________________________
Name:
Title:
EXHIBIT
N-2
FORM
CERTIFICATION TO BE
PROVIDED
TO DEPOSITOR BY THE TRUSTEE
|
Re:
|
Soundview
Home Loan Trust 2007-NS1 (the “Trust”)
Asset-Backed
Certificates, Series 2007-NS1
|
I,
[identify the certifying individual], a [title] of Deutsche Bank National
Trust
Company, as Trustee of the Trust, hereby certify to Financial Asset Securities
Corp. (the “Depositor”), and its officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 10-D required to be filed in respect of the period covered
by
such Form 10-K of the Depositor relating to the above-referenced trust (the
“Exchange Act periodic reports”)
2. Based
on
my knowledge, the information prepared by the Trustee, contained, in these
distribution reports taken as a whole, do not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this report;
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated February 1, 2007 (the “Pooling and
Servicing Agreement”), among the Depositor as depositor, Nationstar Mortgage,
LLC as servicer and Deutsche Bank National Trust Company as
trustee.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
EXHIBIT
N-3
FORM
CERTIFICATION TO BE
PROVIDED
TO THE DEPOSITOR BY THE SERVICER
Re: Soundview
Home Loan Trust, Series 2007-NS1
Asset
Backed Certificates, Series 2007-NS1
I,
[identify the certifying individual], certify to Financial Asset Securities
Corp. (the “Depositor”), the Trustee and their respective officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1.
Based
on
my knowledge, the information in the annual compliance statement, the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the servicing of
the
Mortgage Loans taken as a whole, does not contain any untrue statement of
a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading as of the date of this certification;
2. The
servicing information required to be provided by the Servicer under the Pooling
and Servicing Agreement has been provided to the Depositor and the
Trustee;
3. I
am
responsible for reviewing the activities performed by the Servicer under
the
Pooling and Servicing Agreement and based upon the review required by the
Pooling and Servicing Agreement, and except as disclosed in the annual
compliance statement or the Annual Independent Public Accountant's Servicing
Report, the Servicer has, as of the date of this certification fulfilled
its
obligations under the Pooling and Servicing Agreement; and
4. Such
officer has disclosed to the Depositor and the Trustee all significant
deficiencies relating to the Servicer’s compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth
in the Pooling and Servicing Agreement.
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except
as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated February 1, 2007 (the “Pooling and
Servicing Agreement”), among the Depositor, Nationstar Mortgage, LLC as servicer
and Deutsche Bank National Trust Company as trustee.
Date:
NATIONSTAR
MORTGAGE, LLC
By:______________________________
Name:
EXHIBIT
O
FORM
OF
INTEREST RATE CAP AGREEMENT
 |
|
|
Financial
Markets
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
|
|
March
8, 2007
|
|
Deutsche
Bank National Trust Company, not in its individual capacity,
but solely as
Cap Trustee (the “Cap Trustee”) on behalf of the Cap Trust with respect to
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates,
Series
2007-NS1 (“Party
B”)
|
|
|
Deutsche
Bank National Trust Company
0000
Xxxx Xxxxx Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
c/o
RBS Financial Markets
Xxxxx
0, 000 Xxxxxxxxxxx
Xxxxxx
XX0X 3UR
Attn:
Head of Legal, Financial Markets
Tel:
00 000 000 0000
Fax:
00 000 000 0000
|
|
Copy
To:
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Legal Department - Derivatives Documentation
Tel.:
000-000-0000
Fax:
000-000-0000/34
|
|
Our
Reference Number:
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Party A and
Deutsche Bank National Trust Company, not individually, but solely as cap
trustee (the “Cap
Trustee”)
on
behalf of the Cap Trust with respect to Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates, Series 2007-NS1 (the “Trust”)
created under the Pooling and Servicing Agreement, dated as of February
1, 2007,
among Financial Asset Securities Corp. (the “Depositor”),
Nationstar Mortgage, LLC. (the
“Servicer”)
and
Deutsche Bank National Trust Company (as “Trustee”)
(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in
1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Cap
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth in
Schedule A
attached hereto.
|
|
Scale
Factor:
|
250
|
|
Trade
Date:
|
March
6, 2007
|
|
Effective
Date:
|
November
25, 2007
|
|
Termination
Date:
|
February
25, 2012, subject to adjustment in accordance with the Business
Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Payment Date:
|
March
8, 2007
|
|
Fixed
Amount:
|
USD
825,000, to be paid on behalf of Party B by Greenwich Capital
Financial
Products, Inc. to Party A. The Parties agree, for convenience
and ease of
administration, the payment of the Fixed Amount will be netted
with the
payment of the Additional Floating Amount in the confirmation
with
reference number D16221894 and the Fixed Amounts in the confirmations
between the Parties with reference numbers IRG16221895.2A/2B
and
IRG16221895.2A/2B.
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate:
|
5.200000%
|
|
Floating
Rate Payer Period End Dates:
|
The
25th day of each month, commencing December 25, 2007, through
and
including the Termination Date, subject to adjustment in accordance
with
the Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be one (1) Business Day prior to each Floating Rate Payer Period
End
Date.
|
|
Floating
Amounts:
|
To
be determined in accordance with the following formula: Greater
of (i)
(Floating Rate minus Cap Rate) *Notional Amount* 250 * Floating
Rate Day
Count Fraction, and (ii) zero.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate Option for any
Calculation
Period is greater than 9.500000%, then the Floating Rate Option
for such
Calculation Period shall be deemed to be 9.500000%.
|
|
Designated
Maturity:
|
1
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
Compounding:
|
Inapplicable:
|
|
Calculation
Agent:
|
Party
A
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention
|
Following
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided,
however,
that Section 5(a)(i) is hereby amended by replacing the word
“third” with
the word “second”; provided,
further,
that notwithstanding anything to the contrary in Section 5(a)(i),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for
30 or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided,
however,
that notwithstanding anything to the contrary in Section 5(a)(iii)(1),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(iii) unless
(A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the shareholders’ equity of Party A or, if applicable, the Eligible Guarantor,
in either case, as shown in the most recent annual audited financial statements
of such entity.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided
that, with respect to Party B only, Section 5(a)(vii)(4) is hereby
amended
by adding after the words “against it” the words “(excluding any
proceeding or petition instituted or presented by Party A or
its
Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by deleting the
words “to (7) inclusive” and inserting lieu thereof “, (3), (4) as
amended, (5), (6) as amended, or (7)”. For purposes of Section
5(a)(vii)(6), the only relevant appointments are the appointments
of (i)
Deutsche Bank National Trust Company, as Trustee, Supplemental
Interest
Trust Trustee and Cap Trustee, in each case in accordance with
the Pooling
and Servicing Agreement, (ii) Nationstar Mortgage, LLC, as Servicer,
and
(iii) any successor to Deutsche Bank National Trust Company or
Nationstar
Mortgage, LLC that is appointed in accordance with the Pooling
and
Servicing Agreement.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided,
however,
with
respect to “Illegality” the statement that such event will apply to a specific
party means that upon the occurrence of such a Termination Event with respect
to
such party, either party shall have the right to designate an Early Termination
Date in accordance with Section 6 of this Agreement.
(i) The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided
that Party A shall not be entitled to designate an Early Termination
Date
by reason of a Tax Event upon Merger in respect of which it is
the
Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided,
however,
that in the event that Party A is the Defaulting Party or the
sole
Affected Party with respect to a Tax Event upon Merger or an
Additional
Termination Event, the following provisions will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable
as of
the same day and time (without regard to different time zones) on or as
soon as
reasonably practicable before the Latest Settlement Amount Determination
Day (as
defined below). The day and time as of which those quotations are to be
obtained
will be selected in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is so obliged, after consultation
with
the other.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by
Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or
group of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days
after the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case
no later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon
acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided,
however,
that
(x) the amounts payable under the immediately preceding clauses (II) and
(III)
shall be subject to netting in accordance with Section 2(c) of this Agreement
and (y) notwithstanding any other provision of this Agreement, any amount
payable by Party A under the immediately preceding clause (III) shall not
be
netted-off against any amount payable by Party B under the immediately
preceding
clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B
shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a
negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
|
| (ii) |
The
Second Method will apply.
|
(g)
“Termination
Currency”
means
USD.
(h) Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party
pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided
that it
shall not be a breach of this representation where reliance is placed on
clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
| (i) |
Party
A is a tax resident of the United
Kingdom;
|
| (ii) |
Party
A is a "foreign person" within the meaning of the applicable
U.S. Treasury
Regulations concerning information reporting and backup withholding
tax
(as in effect on January 1, 2001), unless Party A provides written
notice
to Party B that it is no longer a foreign person;
|
| (iii) |
in
respect of each Transaction Party A enters into through an office
or
discretionary agent in the United States or which otherwise is
allocated
(in whole or part) for United States federal income tax purposes
to such
United States trade or business, each payment received or to
be received
by Party A under such Transaction (or portion thereof, if applicable)
will
be effectively connected with its conduct of a trade or business
in the
United States; and
|
| (iv) |
in
respect of all other Transactions or portions thereof, no such
payment
received or to be received by Party A in connection with this
Agreement is
attributable to a trade or business carried on by it through
a permanent
establishment in the United States.
|
(B)
Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party
B shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a)
For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
A
correct, complete and duly executed U.S. Internal Revenue Service
Form
(W-8BEN, W-8ECI, W-9 or other applicable form (or successor thereto)),
together with appropriate attachments, that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A
under this
Agreement.
|
Upon
the execution and delivery of this Agreement and upon reasonable
request.
|
||
|
Party
B
|
Any
form or document required or reasonably requested to allow the
other party
to make payments to Party B under the Agreement without any deduction
or
withholding for or on account of any Tax, or with such deduction
or
withholding at a reduced rate, which may include tax forms relating
to the
beneficial owner of payments to Party B under the Agreement from
time to
time.
|
Upon
the execution and delivery of this Agreement and at any time
that the last
such document delivered becomes incorrect or
out-of-date.
|
(b)
For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website
|
Yes
|
|
Party
A
|
Interim
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s reporting period prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website.
|
Yes
|
|
Party
A and
Party
B
|
Opinion(s)
of counsel satisfactory to the other party
|
Upon
the execution and delivery of this Agreement
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A and Party B shall be those set
forth on
the first page of the Confirmation:
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B:
The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A:
The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B:
None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes
of this
Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b) Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
|
(ii)
|
[Reserved]
|
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract participant” as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
| (i) |
First
Rating Trigger Collateral.
If
(A) it is not the case that a Xxxxx’x Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support
Annex, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
|
| (ii) |
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been
continuing
for 30 or more Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all
of Party A’s
rights and obligations under this Agreement (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible
Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A
and Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
|
(iii)
|
[Reserved]
|
|
(iv)
|
Regulation
AB. If
(i) the Depositor still has a reporting obligation with respect
to the
Transaction hereunder pursuant to Regulation AB and (ii) Party
A has not,
within the applicable time period specified in Part 5(e)(ii)(a)
below
after a Cap Disclosure Event, complied with any of the provisions
set
forth in Part 5(e)(ii) below, then an Additional Termination
Event shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
(v)
|
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement.
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an Early
Termination Date in respect of this Additional Termination
Event.
|
|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least
equal to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so
long as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
|
(e)
Compliance
with Regulation AB.
(i)
It
shall
be a cap disclosure event (“Cap
Disclosure Event”)
if, at
any time after the date hereof while the Depositor has reporting obligations
with respect to this Transaction pursuant to Regulation AB, the Depositor
or
Greenwich Capital Financial Products, Inc. (the “Sponsor”)
notifies Party A that the aggregate “significance percentage” (calculated in
accordance with the provisions of Item 1115 of Regulation AB) of all derivative
instruments provided by Party A and any of its affiliates to Party B
(collectively, the “Aggregate
Significance Percentage”)
is 9%
or more.
(ii)
Upon
the
occurrence of a Cap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB,
Party A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or
the
Issuing Entity), shall take one of the following actions:
(a)
provide
to the Sponsor and the Depositor: (i) if the Aggregate Significance Percentage
is 9% or more, but less than 10%, within thirty (30) days, either, at the
sole
discretion of Party A, the information required under Item 1115(b)(1) or
Item
1115(b)(2) of Regulation AB, (ii) if the Aggregate Significance Percentage
is
10% or more, but less than 20%, within five (5) Business Days, either,
at the
sole discretion of Party A, the information required under Item 1115(b)(1)
or
Item 1115(b)(2) of Regulation AB, (iii) if the Aggregate Significance Percentage
is 19% or more, but less than 20%,, within thirty (30) days, the information
required under Item 1115(b)(2) of Regulation AB or (iv) if the Aggregate
Significance Percentage is 20% or more, within five (5) Business Days,
the
information required under Item 1115(b)(2) of Regulation AB; or
(b)
transfer
in a Permitted Transfer (provided that a Permitted Transfer pursuant to
this
subclause (b) shall not require satisfaction of the Rating Agency Condition)
its
obligations under the Transaction to a counterparty with the Approved Ratings
Thresholds (or which satisfies the Rating Agency Condition), that (x) provides
the information specified in clause (a) above to the Depositor and Sponsor
and
(y) enters into documentation substantially similar to the documentation
then in
place between Party A and Party B. For purposes of this subclause (b),
the
parties agree that National Westminster Bank Plc (“NatWest”)
shall
be an acceptable replacement for Party A, so long as NatWest is able to
provide
the information required under subclause (a) above and satisfy the requirements
of this subclause (b).
(iii)
For so long as the Aggregate Significance Percentage is 10% or more the
Depositor has reporting obligations with respect to this Transaction, Party
A
shall provide any updates to the information provided pursuant to clause
(ii)(a)
above to the Sponsor and the Depositor within five (5) Business Days following
the availability thereof (but in no event more than 6 months after the
end of
each of Party A’s fiscal year for any annual update and when available for any
interim update).
(iv)
All
information provided pursuant to clause (ii) shall be in a form suitable
for
conversion to the format required for filing by the Depositor with the
Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition,
any such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by
an
appropriate agreed-upon procedures letter from Party A’s accountants. If
permitted by Regulation AB, any such information may be provided by reference
to
or incorporation by reference from reports filed pursuant to the Exchange
Act.
(v)
The
Sponsor and the Depositor each shall be an express third party beneficiary
of
this Agreement with respect to Party A’s undertakings under this Part 5(e)
only.
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(e)(ii)(b) or Part 5(f), neither Party A nor Party B is permitted
to
assign, novate or transfer (whether by way of security or otherwise) as
a whole
or in part any of its rights, obligations or interests under the Agreement
or
any Transaction unless (a) the prior written consent of the other party
is
obtained and (b) the Rating Agency Condition has been satisfied with respect
to
S&P. At any time at which no Relevant Entity has credit ratings at least
equal to the Approved Ratings Threshold, Party A may make a Permitted
Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to be
the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agrees that, notwithstanding any provision
in
this Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from
the Cap Trust
and the proceeds thereof, in accordance with the priority of
payments and
other terms of the Pooling and Servicing Agreement and that Party
A will
not have any recourse to any of the directors, officers, employees,
shareholders or affiliates of the Party B with respect to any
claims,
losses, damages, liabilities, indemnities or other obligations
asserted
against Party B in connection with any transactions contemplated
hereby.
In the event that the Cap Trust and the proceeds thereof, funded
in
accordance with the priority of payments and other terms of the
Pooling
and Servicing Agreement, should be insufficient to satisfy all
claims
outstanding and following the realization of the account held
by the Cap
Trust and the proceeds thereof, any claims against or obligations
of Party
B under the ISDA Master Agreement or any other confirmation thereunder
still outstanding shall be extinguished and thereafter not revive.
The Cap
Trustee shall not have liability for any failure or delay in
making a
payment hereunder to Party A due to any failure or delay in receiving
amounts in the account held by the Cap Trust from the Trust created
pursuant to the Pooling and Servicing Agreement. This provision
will
survive the termination of this
Agreement.
|
|
(h)
|
[Reserved]
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such
designation
or transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Rating
Agencies has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Rating Agency notice of such event or condition;
provided
that failure to provide notice of such event or condition pursuant
to this
Part 5(l) shall not constitute an Event of Default or a Termination
Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the Cap
Trust,
or the trust formed pursuant to the Pooling and Servicing Agreement, in
any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law
for a
period of one year (or, if longer, the applicable preference period) and
one day
following payment in full of the Certificates and any Notes. This provision
will
survive the termination of this Agreement.
|
(n)
|
Cap
Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed by Deutsche Bank National Trust Company
(“DBNTC”)
not in its individual capacity, but solely as Cap Trustee under
the
Pooling and Servicing Agreement in the exercise of the powers
and
authority conferred and invested in it thereunder; (b) DBNTC
has been
directed pursuant to the Pooling and Servicing Agreement to enter
into
this Agreement and to perform its obligations hereunder; (c)
each of the
representations, undertakings and agreements herein made on behalf
of the
Cap Trust is made and intended not as personal representations
of the Cap
Trustee but is made and intended for the purpose of binding only
the Cap
Trust; and (d) under no circumstances shall DBNTC
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided,
however,
that this severability provision shall not be applicable if any
provision
of Section 2, 5, 6, or 13 (or any definition or provision in
Section 14 to
the extent it relates to, or is used in or in connection with
any such
Section) shall be so held to be invalid or unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Party
B as Agent. Party
A acknowledges that Party B is acting as the Cap Trustee for
the Cap Trust
under the Pooling and Servicing Agreement to carry out certain
functions
on behalf of the Cap Trust.
|
|
(q)
|
[Reserved]
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at
any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any suit, action or proceeding relating to this Agreement or
any Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in
1992 by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A
to Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
|
Party
A’s
obligations under this Agreement rank pari
passu
with all
of Party A’s other unsecured, unsubordinated obligations except those
obligations preferred by operation of law.
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person.
|
|
(w)
|
Acknowledgements.
|
|
(i)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by
the parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
|
(x)
Agency
Role of Greenwich Capital Markets, Inc.
In
connection with this Agreement, Greenwich Capital Markets, Inc. has acted
as
agent on behalf of The Royal Bank of Scotland plc. Greenwich Capital Markets,
Inc. has not guaranteed and is not otherwise responsible for the obligations
of
The Royal Bank of Scotland plc under this Agreement.
(y)
Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the Agreement, if Party
B has
satisfied its payment obligations under Section 2(a)(i) of the Agreement,
then
unless Party A is required pursuant to appropriate proceedings to return
to
Party B or otherwise returns to Party B upon demand of Party B any portion
of
such payment, (a) the occurrence of an event described in Section 5(a)
of the
Agreement with respect to Party B (other than in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex) shall not
constitute an Event of Default or Potential Event of Default with respect
to
Party B as the Defaulting Party and (b) Party A shall be entitled to designate
an Early Termination Date pursuant to Section 6 of the Agreement only as
a
result of (x) an Event of Default under Section 5(a)(3) in respect of Party
B’s
obligations under Paragraph 3(b) of the Credit Support Annex, (y) a Termination
Event set forth in either Section 5(b)(i) or Section 5(b)(ii) of the Agreement
with respect to Party A as the Affected Party or (z) Section 5(b)(iii)
of the
Agreement with respect to Party A as the Burdened Party. For purposes of
the
Transaction to which this Confirmation relates, Party B’s only obligation under
Section 2(a)(i) of the Agreement is to pay the Fixed Amount on the Fixed
Rate
Payer Payment Date.
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b) and (c) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor
is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had
no such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex).
“Eligible
Replacement”
means an
entity (i) that has credit ratings at least equal to the Approved Ratings
Threshold, (ii) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex),
or
(iii) the present and future obligations (for the avoidance of doubt, not
limited to payment obligations) of which entity to Party B under this Agreement
are guaranteed pursuant to an Eligible Guarantee provided by an Eligible
Guarantor.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(e)(ii)(b), Part 5(f) or the second sentence of Section 7 (as amended
herein)
to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement;
(b)
Party A and the Transferee are both “dealers in notional principal contracts”
within the meaning of Treasury regulations section 1.1001-4; (c) as of
the date
of such transfer the Transferee would not be required to withhold or deduct
on
account of Tax from any payments under this Agreement or would be required
to
gross up for such Tax under Section 2(d)(i)(4); (d) an Event of Default
or
Termination Event would not occur as a result of such transfer; (e) pursuant
to
a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or
expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Rating Agency has been given prior
written notice of such transfer and such transfer is in connection with
the
assignment and assumption of this Agreement without modification of its
terms,
other than party names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)(i)
are not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv) or Part 5(v), notice
information and account details; and (i) such transfer otherwise complies
with
the terms of the Pooling and Servicing Agreement.
“Rating
Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any
of the
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Rating Agency specified in connection with such proposed act or omission,
that the party acting or failing to act must consult with each of the specified
Rating Agencies and receive from each such Rating Agency a prior written
confirmation that the proposed action or inaction would not cause a downgrade
or
withdrawal of the then-current rating of any Certificates or Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
4. Account
Details and Settlement Information:
|
Payments
to Party A:
|
For
the account of The Royal Bank of Scotland Financial Markets
Fixed Income
and
Interest
Rate Derivative Operations, London SWIFT XXXXXX0XXXX with
JPMorgan
Chase Bank, New York XXXXXX00, ABA # 000000000
|
|
Account
Number 400930153
|
|
|
Payments
to Party B:
|
Deutsche
Bank National Trust Company
|
|
ABA
# 000000000
|
|
|
Account
#: 00000000
|
|
|
Account
Name: NYLTD Funds Control/Stars West
|
|
|
Ref:
Soundview 2007-NS1 Cap GC07V1
|
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
[Remainder
of this page intentionally left blank.]
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
| By | |||
| Name: | |||
| Title: |
Accepted
and confirmed as of the Trade Date written above:
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not
in
its individual capacity, but solely as Cap Trustee on
behalf
of
the Cap Trust with respect to Soundview Home Loan Trust 2007-NS1, Asset-Backed
Certificates, Series 2007-NS1
| By | |||
| Name: | |||
| Title: |
SCHEDULE
A
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
||
|
11/25/07
|
12/25/07
|
868.51
|
||
|
12/25/07
|
01/25/08
|
834.66
|
||
|
01/25/08
|
02/25/08
|
802.12
|
||
|
02/25/08
|
03/25/08
|
770.86
|
||
|
03/25/08
|
04/25/08
|
740.92
|
||
|
04/25/08
|
05/25/08
|
712.14
|
||
|
05/25/08
|
06/25/08
|
684.48
|
||
|
06/25/08
|
07/25/08
|
657.89
|
||
|
07/25/08
|
08/25/08
|
632.32
|
||
|
08/25/08
|
09/25/08
|
563.07
|
||
|
09/25/08
|
10/25/08
|
5,477.71
|
||
|
10/25/08
|
11/25/08
|
794,192.85
|
||
|
11/25/08
|
12/25/08
|
723,544.39
|
||
|
12/25/08
|
01/25/09
|
655,088.38
|
||
|
01/25/09
|
02/25/09
|
583,708.19
|
||
|
02/25/09
|
03/25/09
|
554,846.53
|
||
|
03/25/09
|
04/25/09
|
528,205.42
|
||
|
04/25/09
|
05/25/09
|
503,342.12
|
||
|
05/25/09
|
06/25/09
|
479,650.62
|
||
|
06/25/09
|
07/25/09
|
457,073.06
|
||
|
07/25/09
|
08/25/09
|
435,557.13
|
||
|
08/25/09
|
09/25/09
|
415,052.90
|
||
|
09/25/09
|
10/25/09
|
395,512.85
|
||
|
10/25/09
|
11/25/09
|
397,774.00
|
||
|
11/25/09
|
12/25/09
|
380,270.99
|
||
|
12/25/09
|
01/25/10
|
362,872.52
|
||
|
01/25/10
|
02/25/10
|
345,785.12
|
||
|
02/25/10
|
03/25/10
|
329,501.41
|
||
|
03/25/10
|
04/25/10
|
313,983.62
|
||
|
04/25/10
|
05/25/10
|
299,195.76
|
||
|
05/25/10
|
06/25/10
|
285,103.69
|
||
|
06/25/10
|
07/25/10
|
271,674.56
|
||
|
07/25/10
|
08/25/10
|
258,877.19
|
||
|
08/25/10
|
09/25/10
|
246,681.90
|
||
|
09/25/10
|
10/25/10
|
235,060.38
|
||
|
10/25/10
|
11/25/10
|
223,985.67
|
||
|
11/25/10
|
12/25/10
|
213,432.07
|
||
|
12/25/10
|
01/25/11
|
203,375.08
|
||
|
01/25/11
|
02/25/11
|
193,791.36
|
||
|
02/25/11
|
03/25/11
|
184,658.65
|
||
|
03/25/11
|
04/25/11
|
175,955.76
|
||
|
04/25/11
|
05/25/11
|
167,662.48
|
||
|
05/25/11
|
06/25/11
|
159,759.55
|
||
|
06/25/11
|
07/25/11
|
152,228.62
|
||
|
07/25/11
|
08/25/11
|
145,052.19
|
||
|
08/25/11
|
09/25/11
|
138,213.60
|
||
|
09/25/11
|
10/25/11
|
131,696.96
|
||
|
10/25/11
|
11/25/11
|
125,487.14
|
||
|
11/25/11
|
12/25/11
|
119,568.81
|
||
|
12/25/11
|
01/25/12
|
113,928.77
|
||
|
01/25/12
|
02/25/12
|
108,554.33
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of March 8, 2007 between
The
Royal
Bank of Scotland plc (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not in its individual capacity, but solely
as Cap
Trustee (the “Cap
Trustee”)
on
behalf
of the Cap Trust with respect to Soundview Home Loan Trust 2007-NS1,
Asset-Backed Certificates, Series 2007-NS1 (the “Trust”)
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that
may be
contained in the Agreement, this Credit Support Annex shall relate
solely to the
Transaction documented in the Confirmation dated March 8, 2007, between
Party A
and Party B, Reference Number IRG16221895.2A/.2B.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I)
by deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party, and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by
the Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by
deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the
least of
|
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b)
the S&P
Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Moody’s First Trigger Credit Support Amount for such Valuation
Date,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery
Amount or Return
Amount for any Valuation Date, reference shall be made to
the S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for
such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and
13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
ISDA
Collateral Asset Definition
(ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
Moody’s
First
Trigger Valuation
Percentage
|
Moody’s
Second
Trigger
Valuation
Percentage
|
||||
|
(A)
US-CASH
|
N/A
|
100%
|
100%
|
100%
|
||||
|
(B)
US-TBILL
US-TNOTE
US-TBOND
|
||||||||
|
1
or less
|
98.9%
|
100%
|
100%
|
|||||
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|||||
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|||||
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|||||
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|||||
|
More
than 20
|
88.6%
|
100%
|
88%
|
|||||
|
(C)
US-GNMA
US-FNMA
US-FHLMC
|
||||||||
|
1
or less
|
98.5%
|
100%
|
99%
|
|||||
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|||||
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|||||
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|||||
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|||||
|
More
than 20
|
84.4%
|
100%
|
87%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Paragraph 13(b)(ii)
are
taken from the Collateral Asset Definitions (First Edition June 2003)
as
published and copyrighted in 2003 by the International Swaps and Derivatives
Association, Inc.
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero
if (i) a
Collateral Event has occurred and has been continuing (x)
for at least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B;
provided,
however,
that if the aggregate Certificate Principal Balance of the
Certificates
and the aggregate principal balance of the Notes rated by
S&P is at
the time of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the
nearest integral
multiple of USD 1,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A. All calculations by the Valuation Agent must
be made in
accordance with standard market
practice.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount, or the Moody’s Second
Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent
on the Local
Business Day immediately preceding the Valuation Date or
date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made
as of
approximately the same time on the same date.
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions
of Valuation
Agent or Valuation Date, at any time at which Party A (or,
to the extent
applicable, its Credit Support Provider) does not have a
long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date
based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each
calendar month
two external marks for each Transaction to which this Annex
relates and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external
marks. Each
external xxxx in respect of a Transaction shall be obtained
from an
independent Reference Market-maker that would be eligible
and willing to
enter into such Transaction in the absence of the current
derivative
provider, provided
that an external xxxx xxx not be obtained from the same Reference
Market-maker more than four times in any 12-month period.
The Valuation
Agent shall obtain these external marks directly or through
an independent
third party, in either case at no cost to Party B. The Valuation
Agent
shall calculate on each Valuation Date (for purposes of this
paragraph,
the last Local Business Day in each calendar month referred
to above shall
be considered a Valuation Date) the Secured Party’s Exposure based on the
greater of the Valuation Agent’s internal marks and the external marks
received. If the S&P Value on any such Valuation Date of all Posted
Credit Support then held by the Secured Party is less than
the S&P
Credit Support Amount on such Valuation Date (in each case
as determined
pursuant to this paragraph), Party A shall, within three
Local Business
Days of such Valuation Date, Transfer to the Secured Party
Eligible Credit
Support having an S&P Value as of the date of Transfer at least equal
to such deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable,
its Credit
Support Provider) does not have a long-term unsubordinated
and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations
of the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation
Agent shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With
respect to
Party A: any Additional Termination Event with respect to
which Party A is
the sole Affected Party. With respect to Party B:
None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain
the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 11:00 a.m. New York time on the Local Business Day
following the
date on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12,
for the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time
for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on
a national
securities exchange, the bid price for such securities quoted at the
Valuation
Time by any principal market maker for such securities selected by
the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date,
the bid
price listed or quoted (as the case may be) at the Valuation Time for
the day
next preceding such date on which such prices were available and (2)
the
applicable Valuation Percentage for such Eligible Collateral, and (B)
the
accrued interest on such securities (except to the extent Transferred
to the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable
price
referred to in the immediately preceding clause (A)) as of such
date.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as Cap Trustee
or (B) any
entity other than the entity then serving as Cap Trustee if such other
entity
(or, to the extent applicable, its parent company or credit support
provider)
shall then have a long-term unsecured and unsubordinated debt rating
of at least
“A+” by S&P and at least “A1” by Xxxxx’x.
Initially,
the Custodian
for
Party B is: the Cap Trustee of the Trust.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B,
but the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted
Collateral in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) interest-bearing Permitted
Investments
rated at least AAAm or AAAm-G by S&P and Prime-1 by Xxxxx’x or Aaa by
Xxxxx’x as directed by Party A (unless (x) an Event of Default
or an
Additional Termination Event has occurred with respect to
which Party A is
the defaulting or sole Affected Party or (y) an Early Termination
Date has
been designated, in which case such investment shall be held
uninvested).
Gains incurred in respect of any investment of Posted Collateral
in the
form of Cash in Permitted Investments as directed by Party
A shall be for
the account of Party A. Party A directs the Custodian to
deposit any
Posted Collateral that is in the form of Cash into an account
that
satisfies the criteria in the second preceding sentence and
that earns
interest at prevailing rates.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and
on any other
Local Business Day on which Posted Collateral in the form
of Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and
received such
funds and such funds are available to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will
be made pursuant
to the Notices Section of this Agreement, except that any
demand,
specification or notice shall be given to or made at the
following
addresses, or at such other address as the relevant party
may from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B’s Custodian, at such address as will be provided from time to
time.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the
party to which
such Transfer will be made.
|
Party
A account details:
For
the
account of The Royal Bank of Scotland Financial Markets Fixed Income
and
Interest Rate
Derivative
Operations, London SWIFT XXXXXX0XXXX with JPMorgan Chase Bank, New
York
XXXXXX00,
ABA # 000000000
Account
Number 400930153
Party
B’s Custodian account details for holding collateral:
Deutsche
Bank National Trust Company
ABA
000-000-000
A/C
#
01419663
A/C
Name
NYLTD Funds Control - Stars West
Ref:
Soundview 2007-NS1 Cap/Swap- Collateral Account
Attn:
GC07V1
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which
shall be an
Eligible Account, and hold, record and identify all Posted
Collateral in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant
in Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a)
and the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting
the word
“Value” and inserting in lieu thereof “S&P Value, Xxxxx’x First
Trigger Value, and Xxxxx’x Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger
Value, as the case may be”. Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words “the Value” and inserting in lieu
thereof “any one or more of the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value” and (2) deleting the second
instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1
through 12,
inclusive, of this Annex is intended to be the printed form
of ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law
Only version) as published and copyrighted in 1994 by the
International
Swaps and Derivatives Association,
Inc.
|
| (v) |
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default
to exist with
respect to Party B except that Paragraph 7(i) will apply
to Party B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in
Paragraph 7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days, and (B) such failure is not
remedied on or
before the third Local Business Day after notice of such
failure is given
to Party A.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will
be responsible for, and will reimburse the Secured Party
for, all transfer
and other taxes and other costs involved in any Transfer
of Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
| (viii) |
[Reserved]
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the
relevant swap
curve on such date, as determined by the Valuation Agent in good faith
and in a
commercially reasonable manner. The Valuation Agent shall, upon request
of Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are
open for
business (including dealings in foreign exchange and foreign currency
deposits)
in New York and the location of Party A, Party B and any Custodian,
and (B) in
relation to a Transfer of Eligible Collateral, any day on which the
clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in
the case of
a Transfer of Cash or other Eligible Collateral for which delivery
is
contemplated by other means a day on which commercial banks are open
for
business (including dealings in foreign exchange and foreign deposits)
in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x First Trigger Ratings Threshold.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business
Days or (y)
since this Annex was executed and (II) it is not the case
that a Xxxxx’x
Second Trigger Event has occurred and been continuing for
at least 30
Local Business Days, an amount equal to the greater of (a)
zero and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of
|
the
lesser of (x) the product of the Xxxxx’x First Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (y) the product of
(i) Xxxxx’x
First Trigger Notional Amount Multiplier, (ii) the Scale Factor and
(iii) the
Notional Amount for such Transaction for the Calculation Period (each
as defined
in the related Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than
Cash, the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Event has occurred and been continuing for at least 30 Local
Business
Days, an amount equal to the greatest of (a) zero, (b) the
aggregate
amount of the next payment due to be paid by Party A under
each
Transaction to which this Annex relates, and (c) the sum
of (x) the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
|
(1)
if
such Transaction is not a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (ii) the product of
(a) the
Xxxxx’x Second Trigger Notional Amount Multiplier, (b) the Scale Factor and
(c)
and the Notional Amount for such Transaction for the Calculation Period
which
includes such Valuation Date; or
(2)
if
such Transaction is a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger Transaction-Specific
Hedge DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(ii) the product of (a) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (b) the Scale Factor and (c) the Notional
Amount for
such Transaction for the Calculation Period (each as defined in the
related
Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than
Cash, the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity
for such
Transaction as determined by the Valuation Agent.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii)
a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) the sum, for each Transaction to which
this Annex
relates, of the product of (i) the Volatility Buffer for
such Transaction,
(ii) the Scale Factor and (iii) the Notional Amount of such
Transaction
for the Calculation Period of such Transaction (each as defined
in the
related Confirmation) which includes such Valuation Date,
or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than
Cash, the
product of (A) the bid price obtained by the Valuation Agent for such
Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were
the only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x)
the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period
(as defined
in the related Confirmation) otherwise is not a specific dollar amount
that is
fixed at the inception of the Transaction, (ii) an interest rate cap,
(iii) an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Xxxxx’x First
Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each
case as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Xxxxx’x
First Trigger Value, and the related Xxxxx’x Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
||||
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
||||
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
||||
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly
authorized
representatives as of the date of the Agreement.
|
The Royal Bank of Scotland plc
By: Greenwich Capital Markets, Inc.,
its
agent
|
Deutsche
Bank National Trust Company, not in its individual capacity,
but solely as
Cap Trustee on behalf of the Cap Trust with respect to Soundview
Home Loan
Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
|
||||||
| By: | By: | ||||||
| Name: | Name: | ||||||
| Title: | Title: | ||||||
|
Date:
|
Date:
|
||||||
EXHIBIT
P
FORM
OF
BASIS RISK CAP AGREEMENT
|
|
|
|
Financial
Markets
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
|
|
March
8, 2007
|
|
Deutsche
Bank National Trust Company, not in its individual capacity, but
solely as
Trustee
(the
“Trustee”) on
behalf of Soundview Home Loan Trust, Asset-Backed Certificates,
Series
2007-NS1
(“Party
B”)
|
|
|
Deutsche
Bank National Trust Company
0000
Xxxx Xxxxx Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
|
c/o
RBS Financial Markets
Xxxxx
0, 000 Xxxxxxxxxxx
Xxxxxx
XX0X 3UR
Attn:
Head of Legal, Financial Markets
Tel:
00 000 000 0000
Fax:
00 000 000 0000
|
|
Copy
To:
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Legal Department - Derivatives Documentation
Tel.:
000-000-0000
Fax:
000-000-0000/34
|
|
Our
Reference Number:
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Party A and
Deutsche Bank National Trust Company, not in its individual capacity, but
solely
as Trustee (the “Trustee”)
on
behalf of Soundview Home Loan Trust, Asset-Backed Certificates, Series (the
“Trust”)
created under the Pooling and Servicing Agreement, dated as of February 1,
2007,
among Financial Asset Securities Corp. (the “Depositor”),
Nationstar Mortgage, LLC. (the
“Servicer”)
and
Deutsche Bank National Trust Company (as “Trustee”)
(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and us
to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1.
This
Confirmation shall supplement, form a part of, and be subject to an agreement
in
the form of the ISDA Master Agreement (Multicurrency - Cross Border) as
published and copyrighted in 1992 by the International Swaps and Derivatives
Association, Inc. (the “ISDA
Master Agreement”),
as if
Party A and Party B had executed an agreement in such form on the date
hereof,
with a Schedule as set forth in Item 3 of this Confirmation, and an ISDA
Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New York Law
Only
version) as published and copyrighted in 1994 by the International Swaps
and
Derivatives Association, Inc., with Paragraph 13 thereof as set forth in
Annex A
hereto (the “Credit
Support Annex”).
For
the avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by such ISDA Master Agreement. In the event of any
inconsistency among any of the following documents, the relevant document
first
listed shall govern: (i) this Confirmation, exclusive of the provisions
set
forth in Item 3 hereof and Annex A hereto; (ii) the provisions set forth
in Item
3 hereof, which are incorporated by reference into the Schedule; (iii)
the
Credit Support Annex; (iv) the Definitions; and (v) the ISDA Master
Agreement.
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the lesser of (i) the amount
set forth
on Schedule A attached hereto and (ii) the aggregate Certificate
Principal
Balance of the Floating Rate Certificates for the related Distribution
Date (the “Relevant Balance”).
|
|
The
Trustee shall make available each month on its website a statement
containing the Relevant Balance at least five (5) Business Days
prior to
the related Floating Rate Payer Payment Date, and Party A shall
be
entitled to rely conclusively upon such statement. The Trustee’s internet
website is located at xxx.xxx.xx.xxx/xxxx and assistance in using
the
website can be obtained by calling 000-000-0000.
|
|
|
Any
payment by Party A to Party B in excess of the amount due under
this
Transaction on any Floating Rate Payer Payment Date (as a result
of the
Notional Amount for the related Calculation Period being other
than the
amount set forth in Schedule A hereto for such Calculation Period)
shall
be returned by Party B to Party A as soon as Party B becomes
aware of such
overpayment. Other than the return of such overpayment, neither
Party B
nor Party A shall incur any penalty or liability hereunder with
respect to
such overpayment.
|
|
|
Trade
Date:
|
March
6, 2007
|
|
Effective
Date:
|
Xxxxx
00, 0000
|
|
Xxxxxxxxxxx
Date:
|
November
25, 2007, subject to adjustment in accordance with the Business
Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Payment Date:
|
March
8, 2007
|
|
Fixed
Amount:
|
USD
6,000, to be paid on behalf of Party B by Greenwich Capital Financial
Products, Inc. to Party A. The Parties agree, for convenience
and ease of
administration, the payment of the Fixed Amount will be netted
with the
payment of the Additional Floating Amount in the confirmation
with
reference number D16221894 and the Fixed Amounts in the confirmations
between the Parties with reference numbers IRG16221895.2A/2B
and
IRG16221895.2A/2B.
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate:
|
For
each Calculation Period the percentage set forth in Schedule
A as the Cap
Rate for such Calculation Period.
|
|
Floating
Rate Payer Period End Dates:
|
The
25th day of each month, commencing April 25, 2007, through and
including
the Termination Date, subject to adjustment in accordance with
the
Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be one (1) Business Day prior to each Floating Rate Payer Period
End
Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than 10.500000%, then the Floating Rate Option
for such
Calculation Period shall be deemed to be 10.500000%.
|
|
Designated
Maturity:
|
1
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
Compounding:
|
Inapplicable:
|
|
Calculation
Agent:
|
Party
A
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention
|
Following
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided,
however,
that Section 5(a)(i) is hereby amended by replacing the word “third” with
the word “second”; provided,
further,
that notwithstanding anything to the contrary in Section 5(a)(i),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided,
however,
that notwithstanding anything to the contrary in Section 5(a)(iii)(1),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(iii) unless (A)
a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the shareholders’ equity of Party A or, if applicable, the Eligible Guarantor,
in either case, as shown in the most recent annual audited financial statements
of such entity.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided
that, with respect to Party B only, Section 5(a)(vii)(4) is hereby
amended
by adding after the words “against it” the words “(excluding any
proceeding or petition instituted or presented by Party A or its
Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by deleting the
words “to (7) inclusive” and inserting lieu thereof “, (3), (4) as
amended, (5), (6) as amended, or (7)”. For purposes of Section
5(a)(vii)(6), the only relevant appointments are the appointments
of (i)
Deutsche Bank National Trust Company, as the Trustee, Supplemental
Interest Trust Trustee and Cap Trustee, in each case in accordance
with
the Pooling and Servicing Agreement, (ii) Nationstar Mortgage,
LLC, as
Servicer, and (iii) any successor to Deutsche Bank National Trust
Company
or Nationstar Mortgage, LLC that is appointed in accordance with
the
Pooling and Servicing Agreement.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d) Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided,
however,
with
respect to “Illegality” the statement that such event will apply to a specific
party means that upon the occurrence of such a Termination Event with respect
to
such party, either party shall have the right to designate an Early Termination
Date in accordance with Section 6 of this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided
that Party A shall not be entitled to designate an Early Termination
Date
by reason of a Tax Event upon Merger in respect of which it is
the
Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
|
(f) Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided,
however,
that in the event that Party A is the Defaulting Party or the sole
Affected Party with respect to a Tax Event upon Merger or an Additional
Termination Event, the following provisions will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable
as of
the same day and time (without regard to different time zones) on or as soon
as
reasonably practicable before the Latest Settlement Amount Determination
Day (as
defined below). The day and time as of which those quotations are to be obtained
will be selected in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is so obliged, after consultation
with
the other.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days after
the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case no
later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and
one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided,
however,
that
(x) the amounts payable under the immediately preceding clauses (II) and
(III)
shall be subject to netting in accordance with Section 2(c) of this Agreement
and (y) notwithstanding any other provision of this Agreement, any amount
payable by Party A under the immediately preceding clause (III) shall not
be
netted-off against any amount payable by Party B under the immediately preceding
clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B shall
be
entitled to accept only the lowest of such Market Quotations (for
the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
|
| (ii) |
The
Second Method will apply.
|
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A) Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided
that it
shall not be a breach of this representation where reliance is placed on
clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
(B) Party
B
makes the following representation(s):
None.
(ii) Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
| (i) |
Party
A is a tax resident of the United
Kingdom;
|
| (ii) |
Party
A is a "foreign person" within the meaning of the applicable U.S.
Treasury
Regulations concerning information reporting and backup withholding
tax
(as in effect on January 1, 2001), unless Party A provides written
notice
to Party B that it is no longer a foreign person;
|
| (iii) |
in
respect of each Transaction Party A enters into through an office
or
discretionary agent in the United States or which otherwise is
allocated
(in whole or part) for United States federal income tax purposes
to such
United States trade or business, each payment received or to be
received
by Party A under such Transaction (or portion thereof, if applicable)
will
be effectively connected with its conduct of a trade or business
in the
United States; and
|
| (iv) |
in
respect of all other Transactions or portions thereof, no such
payment
received or to be received by Party A in connection with this Agreement
is
attributable to a trade or business carried on by it through a
permanent
establishment in the United States.
|
(B) Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a)
For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
A
correct, complete and duly executed U.S. Internal Revenue Service
Form
(W-8BEN, W-8ECI, W-9 or other applicable form (or successor thereto)),
together with appropriate attachments, that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A under
this
Agreement.
|
Upon
the execution and delivery of this Agreement and upon reasonable
request.
|
||
|
Party
B
|
Any
form or document required or reasonably requested to allow the
other party
to make payments to Party B under the Agreement without any deduction
or
withholding for or on account of any Tax, or with such deduction
or
withholding at a reduced rate, which may include tax forms relating
to the
beneficial owner of payments to Party B under the Agreement from
time to
time.
|
Upon
the execution and delivery of this Agreement and at any time that
the last
such document delivered becomes incorrect or
out-of-date.
|
(b)
For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|||
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website
|
Yes
|
|||
|
Party
A
|
Interim
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s reporting period prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website.
|
Yes
|
|||
|
Party
A and
Party
B
|
Opinion(s)
of counsel satisfactory to the other party
|
Upon
the execution and delivery of this Agreement
|
No
|
Part 4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A and Party B shall be those set forth
on
the first page of the Confirmation:
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B: The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A:
The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B:
None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to
each Transaction hereunder.
|
|
(j)
|
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes
of this
Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
|
(ii)
|
[Reserved]
|
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and has
made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing and
able to
accept those terms and conditions and to assume those risks, financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract participant” as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
(i) First
Rating Trigger Collateral.
If (A)
it is not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A
has failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex, then
an
Additional Termination Event shall have occurred with respect to Party
A and
Party A shall be the sole Affected Party with respect to such Additional
Termination Event.
(ii)
Second
Rating Trigger Replacement.
If (A) a
Required Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days and (B) (i) at least one Eligible Replacement has made
a
Firm Offer to be the transferee of all of Party A’s rights and obligations under
this Agreement (and such Firm Offer remains an offer that will become legally
binding upon such Eligible Replacement upon acceptance by the offeree)
and/or
(ii) an Eligible Guarantor has made a Firm Offer to provide an Eligible
Guarantee (and such Firm Offer remains an offer that will become legally
binding
upon such Eligible Guarantor immediately upon acceptance by the offeree),
then
an Additional Termination Event shall have occurred with respect to Party
A and
Party A shall be the sole Affected Party with respect to such Additional
Termination Event.
|
(iii)
|
[Reserved]
|
|
(iv)
|
Regulation
AB. If
(i) the Depositor still has a reporting obligation with respect
to the
Transaction hereunder pursuant to Regulation AB and (ii) Party
A has not,
within the applicable time period specified in Part 5(e)(ii)(a)
below
after a Cap Disclosure Event, complied with any of the provisions
set
forth in Part 5(e)(ii) below, then an Additional Termination Event
shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
(v)
|
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement.
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an Early
Termination Date in respect of this Additional Termination Event;
provided, further, that for purposes of determining the payment
under
Section 6(e) of this Agreement in respect of this Additional Termination
Event, for all Calculation Periods beginning on or after the Early
Termination Date, the definition of Notional Amount in the Confirmation
shall be deleted in its entirety and replaced with the following:
"With
respect to each Calculation Period, the Calculation Amount for
such
Calculation Period as set forth in Schedule A attached hereto multiplied
by the quotient of (A) the Notional Amount for the Calculation
Period
immediately prior to the Early Termination Date divided by (B)
the
Calculation Amount for the Calculation Period immediately prior
to the
Early Termination Date as set forth in Schedule A attached
hereto.
|
|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least equal
to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so long
as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
|
(e)
Compliance
with Regulation AB.
(i)
It
shall
be a cap disclosure event (“Cap
Disclosure Event”)
if, at
any time after the date hereof while the Depositor has reporting obligations
with respect to this Transaction pursuant to Regulation AB, the Depositor
or
Greenwich Capital Financial Products, Inc. (the “Sponsor”)
notifies Party A that the aggregate “significance percentage” (calculated in
accordance with the provisions of Item 1115 of Regulation AB) of all derivative
instruments provided by Party A and any of its affiliates to Party B
(collectively, the “Aggregate
Significance Percentage”)
is 9%
or more.
(ii)
Upon
the
occurrence of a Cap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB, Party
A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or the
Issuing Entity), shall take one of the following actions:
(a)
provide
to the Sponsor and the Depositor: (i) if the Aggregate Significance Percentage
is 9% or more, but less than 10%, within thirty (30) days, either, at the
sole
discretion of Party A, the information required under Item 1115(b)(1) or
Item
1115(b)(2) of Regulation AB, (ii) if the Aggregate Significance Percentage
is
10% or more, but less than 20%, within five (5) Business Days, either, at
the
sole discretion of Party A, the information required under Item 1115(b)(1)
or
Item 1115(b)(2) of Regulation AB, (iii) if the Aggregate Significance Percentage
is 19% or more, but less than 20%, within thirty (30) days, the information
required under Item 1115(b)(2) of Regulation AB or (iv) if the Aggregate
Significance Percentage is 20% or more, within five (5) Business Days, the
information required under Item 1115(b)(2) of Regulation AB; or
(b)
transfer
in a Permitted Transfer (provided that a Permitted Transfer pursuant to this
subclause (b) shall not require satisfaction of the Rating Agency Condition)
its
obligations under the Transaction to a counterparty with the Approved Ratings
Thresholds (or which satisfies the Rating Agency Condition), that (x) provides
the information specified in clause (a) above to the Depositor and Sponsor
and
(y) enters into documentation substantially similar to the documentation
then in
place between Party A and Party B. For purposes of this subclause (b), the
parties agree that National Westminster Bank Plc (“NatWest”)
shall
be an acceptable replacement for Party A, so long as NatWest is able to provide
the information required under subclause (a) above and satisfy the requirements
of this subclause (b).
(iii) For
so long as the Aggregate Significance Percentage is 10% or more the Depositor
has reporting obligations with respect to this Transaction, Party A shall
provide any updates to the information provided pursuant to clause (ii)(a)
above
to the Sponsor and the Depositor within five (5) Business Days following
the
availability thereof (but in no event more than 6 months after the end of
each
of Party A’s fiscal year for any annual update and when available for any
interim update).
(iv)
All
information provided pursuant to clause (ii) shall be in a form suitable
for
conversion to the format required for filing by the Depositor with the
Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition, any
such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by an
appropriate agreed-upon procedures letter from Party A’s accountants. If
permitted by Regulation AB, any such information may be provided by reference
to
or incorporation by reference from reports filed pursuant to the Exchange
Act.
(v)
The
Sponsor and Depositor each shall be an express third party beneficiary of
this
Agreement with respect to Party A’s undertakings under this Part 5(e)
only.
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(e)(ii)(b) or Part 5(f), neither Party A nor Party B is permitted to
assign, novate or transfer (whether by way of security or otherwise) as a
whole
or in part any of its rights, obligations or interests under the Agreement
or
any Transaction unless (a) the prior written consent of the other party is
obtained and (b) the Rating Agency Condition has been satisfied with respect
to
S&P. At any time at which no Relevant Entity has credit ratings at least
equal to the Approved Ratings Threshold, Party A may make a Permitted
Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agrees that, notwithstanding any provision
in
this Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Pooling and Servicing Agreement and that Party
A will
not have any recourse to any of the directors, officers, employees,
shareholders or affiliates of the Party B with respect to any claims,
losses, damages, liabilities, indemnities or other obligations
asserted
against Party B in connection with any transactions contemplated
hereby.
In the event that the Trust and the proceeds thereof, funded in
accordance
with the priority of payments and other terms of the Pooling and
Servicing
Agreement, should be insufficient to satisfy all claims outstanding
and
following the realization of the account held by the Trust and
the
proceeds thereof, any claims against or obligations of Party B
under the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive. The
Trustee
shall not have liability for any failure or delay in making a payment
hereunder to Party A due to any failure or delay in receiving amounts
in
the account held by the Trust from the Trust created pursuant to
the
Pooling and Servicing Agreement. This provision will survive the
termination of this Agreement.
|
|
(h)
|
[Reserved]
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such
designation
or transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Rating Agencies
has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
Party and to each Rating Agency notice of such event or condition;
provided
that failure to provide notice of such event or condition pursuant
to this
Part 5(l) shall not constitute an Event of Default or a Termination
Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the Trust,
or
the trust formed pursuant to the Pooling and Servicing Agreement, in any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law
for a
period of one year (or, if longer, the applicable preference period) and
one day
following payment in full of the Certificates and any Notes. This provision
will
survive the termination of this Agreement.
|
(n)
|
Trustee
Liability Limitations.
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by Deutsche Bank National Trust Company
(“DBNTC”)
not in its individual capacity, but solely as Trustee under the
Pooling
and Servicing Agreement in the exercise of the powers and authority
conferred and invested in it thereunder; (b) DBNTC has been directed
pursuant to the Pooling and Servicing Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of
the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of the
Trustee
but is made and intended for the purpose of binding only the Trust;
and
(d) under no circumstances shall DBNTC
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of
the
parties; provided,
however,
that this severability provision shall not be applicable if any
provision
of Section 2, 5, 6, or 13 (or any definition or provision in Section
14 to
the extent it relates to, or is used in or in connection with any
such
Section) shall be so held to be invalid or unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Party
B as Agent. Party
A acknowledges that Party B is acting as the Trustee for the Trust
under
the Pooling and Servicing Agreement to carry out certain functions
on
behalf of the Trust.
|
|
(q)
|
[Reserved]
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any suit, action or proceeding relating to this Agreement or any
Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A to
Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
|
Party
A’s
obligations under this Agreement rank pari
passu
with all
of Party A’s other unsecured, unsubordinated obligations except those
obligations preferred by operation of law.
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the Transaction
as principal and not as agent of any person.
|
|
(w)
|
Acknowledgements.
|
|
(i)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by the
parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
|
(x)
Agency
Role of Greenwich Capital Markets, Inc.
In
connection with this Agreement, Greenwich Capital Markets, Inc. has acted
as
agent on behalf of The Royal Bank of Scotland plc. Greenwich Capital Markets,
Inc. has not guaranteed and is not otherwise responsible for the obligations
of
The Royal Bank of Scotland plc under this Agreement.
(y)
Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the Agreement, if Party
B has
satisfied its payment obligations under Section 2(a)(i) of the Agreement,
then
unless Party A is required pursuant to appropriate proceedings to return
to
Party B or otherwise returns to Party B upon demand of Party B any portion
of
such payment, (a) the occurrence of an event described in Section 5(a) of
the
Agreement with respect to Party B (other than in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex) shall not
constitute an Event of Default or Potential Event of Default with respect
to
Party B as the Defaulting Party and (b) Party A shall be entitled to designate
an Early Termination Date pursuant to Section 6 of the Agreement only as
a
result of (x) an Event of Default under Section 5(a)(3) in respect of Party
B’s
obligations under Paragraph 3(b) of the Credit Support Annex, (y) a Termination
Event set forth in either Section 5(b)(i) or Section 5(b)(ii) of the Agreement
with respect to Party A as the Affected Party or (z) Section 5(b)(iii) of
the
Agreement with respect to Party A as the Burdened Party. For purposes of
the
Transaction to which this Confirmation relates, Party B’s only obligation under
Section 2(a)(i) of the Agreement is to pay the Fixed Amount on the Fixed
Rate
Payer Payment Date.
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b) and (c) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had no
such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex).
“Eligible
Replacement”
means an
entity (i) that has credit ratings at least equal to the Approved Ratings
Threshold, (ii) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex),
or
(iii) the present and future obligations (for the avoidance of doubt, not
limited to payment obligations) of which entity to Party B under this Agreement
are guaranteed pursuant to an Eligible Guarantee provided by an Eligible
Guarantor.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(e)(ii)(b), Part 5(f) or the second sentence of Section 7 (as amended herein)
to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement; (b)
Party A and the Transferee are both “dealers in notional principal contracts”
within the meaning of Treasury regulations section 1.1001-4; (c) as of the
date
of such transfer the Transferee would not be required to withhold or deduct
on
account of Tax from any payments under this Agreement or would be required
to
gross up for such Tax under Section 2(d)(i)(4); (d) an Event of Default or
Termination Event would not occur as a result of such transfer; (e) pursuant
to
a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but not
less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Rating Agency has been given prior
written notice of such transfer and such transfer is in connection with the
assignment and assumption of this Agreement without modification of its terms,
other than party names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)(i) are
not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv) or Part 5(v), notice
information and account details; and (i) such transfer otherwise complies
with
the terms of the Pooling and Servicing Agreement.
“Rating
Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any of
the
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Rating Agency specified in connection with such proposed act or omission,
that the party acting or failing to act must consult with each of the specified
Rating Agencies and receive from each such Rating Agency a prior written
confirmation that the proposed action or inaction would not cause a downgrade
or
withdrawal of the then-current rating of any Certificates or Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
4. Account
Details and Settlement Information:
|
Payments
to Party A:
|
For
the account of The Royal Bank of Scotland Financial Markets Fixed
Income
and
Interest
Rate Derivative Operations, London SWIFT XXXXXX0XXXX with
JPMorgan
Chase Bank, New York XXXXXX00, ABA # 000000000
|
|
Account
Number 400930153
|
|
|
Payments
to Party B:
|
Deutsche
Bank National Trust Company
|
|
ABA
# 000000000
|
|
|
Account
#: 00000000
|
|
|
Account
Name: NYLTD Funds Control/Stars West
|
|
|
Ref:
Soundview 2007-NS1 Cap GC07V1
|
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original but all of which together shall constitute one and the same
instrument.
[Remainder
of this page intentionally left blank.]
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
| By | |||
| Name: | |||
| Title: |
Accepted
and confirmed as of the Trade Date written above:
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not
in
its individual capacity, but solely as Trustee on behalf
of
Soundview Home Loan Trust, Asset-Backed Certificates, Series
2007-NS1
| By | |||
| Name: | |||
| Title: |
SCHEDULE
A
|
From
and including
|
To
but excluding
|
Calculation
Amount (USD)
|
Cap
Rate
|
|
03/25/07
|
04/25/07
|
650,774,299.00
|
7.722010
|
|
04/25/07
|
05/25/07
|
641,996,723.00
|
7.979400
|
|
05/25/07
|
06/25/07
|
631,869,358.00
|
7.722120
|
|
06/25/07
|
07/25/07
|
620,417,633.00
|
7.979800
|
|
07/25/07
|
08/25/07
|
607,675,643.00
|
7.722790
|
|
08/25/07
|
09/25/07
|
593,686,182.00
|
7.723940
|
|
09/25/07
|
10/25/07
|
578,501,623.00
|
7.982140
|
|
10/25/07
|
11/25/07
|
562,216,327.00
|
7.725710
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of March 8, 2007 between
The
Royal
Bank of Scotland plc (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not in its individual capacity, but solely as
Trustee (the “Trustee”)
on
behalf
of Soundview Home Loan Trust, Asset-Backed Certificates, Series 2007-NS1
(the
“Trust”)
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated March 8, 2007, between Party
A
and Party B, Reference Number IRG16221898.2A/.2B.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by deleting
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party, and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
|
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
ISDA
Collateral Asset Definition
(ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
Moody’s
First
Trigger Valuation
Percentage
|
Moody’s
Second
Trigger
Valuation
Percentage
|
||||
|
(A)
US-CASH
|
N/A
|
100%
|
100%
|
100%
|
||||
|
(B) US-TBILL
US-TNOTE
US-TBOND
|
||||||||
|
1
or less
|
98.9%
|
100%
|
100%
|
|||||
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|||||
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|||||
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|||||
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|||||
|
More
than 20
|
88.6%
|
100%
|
88%
|
|||||
|
(C)
US-GNMA
US-FNMA
US-FHLMC
|
||||||||
|
1
or less
|
98.5%
|
100%
|
99%
|
|||||
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|||||
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|||||
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|||||
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|||||
|
More
than 20
|
84.4%
|
100%
|
87%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Paragraph 13(b)(ii)
are
taken from the Collateral Asset Definitions (First Edition June 2003) as
published and copyrighted in 2003 by the International Swaps and Derivatives
Association, Inc.
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for at
least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B;
provided,
however,
that if the aggregate Certificate Principal Balance of the Certificates
and the aggregate principal balance of the Notes rated by S&P is at
the time of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 1,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A. All calculations by the Valuation Agent must be
made in
accordance with standard market
practice.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount, or the Moody’s Second
Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to the
extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external xxxx in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and willing
to
enter into such Transaction in the absence of the current derivative
provider, provided
that an external xxxx xxx not be obtained from the same Reference
Market-maker more than four times in any 12-month period. The Valuation
Agent shall obtain these external marks directly or through an
independent
third party, in either case at no cost to Party B. The Valuation
Agent
shall calculate on each Valuation Date (for purposes of this paragraph,
the last Local Business Day in each calendar month referred to
above shall
be considered a Valuation Date) the Secured Party’s Exposure based on the
greater of the Valuation Agent’s internal marks and the external marks
received. If the S&P Value on any such Valuation Date of all Posted
Credit Support then held by the Secured Party is less than the
S&P
Credit Support Amount on such Valuation Date (in each case as determined
pursuant to this paragraph), Party A shall, within three Local
Business
Days of such Valuation Date, Transfer to the Secured Party Eligible
Credit
Support having an S&P Value as of the date of Transfer at least equal
to such deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation Agent
shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if
the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 11:00 a.m. New York time on the Local Business Day following
the
date on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody’s First Trigger
Value, and Moody’s Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time for
such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the
bid
price listed or quoted (as the case may be) at the Valuation Time for the
day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to
the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as Trustee or (B) any
entity other than the entity then serving as Trustee if such other entity
(or,
to the extent applicable, its parent company or credit support provider)
shall
then have a long-term unsecured and unsubordinated debt rating of at least
“A+”
by S&P and at least “A1” by Moody’s.
Initially,
the Custodian
for
Party B is: the Trustee of the Trust.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in
the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) interest-bearing Permitted Investments
rated at least AAAm or AAAm-G by S&P and Prime-1 by Moody’s or Aaa by
Moody’s as directed by Party A (unless (x) an Event of Default or an
Additional Termination Event has occurred with respect to which
Party A is
the defaulting or sole Affected Party or (y) an Early Termination
Date has
been designated, in which case such investment shall be held uninvested).
Gains incurred in respect of any investment of Posted Collateral
in the
form of Cash in Permitted Investments as directed by Party A shall
be for
the account of Party A. Party A directs the Custodian to deposit
any
Posted Collateral that is in the form of Cash into an account that
satisfies the criteria in the second preceding sentence and that
earns
interest at prevailing rates.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian, at such address as will be provided from time to
time.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
Party
A account details:
For
the
account of The Royal Bank of Scotland Financial Markets Fixed Income and
Interest Rate Derivative Operations, London SWIFT XXXXXX0XXXX with JPMorgan
Chase Bank, New York XXXXXX00, ABA # 000000000
Account
Number 400930153
Party
B’s Custodian account details for holding collateral:
Deutsche
Bank National Trust Company
ABA
000-000-000
A/C
#
01419663
A/C
Name
NYLTD Funds Control - Stars West
Ref:
Soundview 2007-NS1 Cap/Swap- Collateral Account
Attn:
GC07V1
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
Eligible Account, and hold, record and identify all Posted Collateral
in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Xxxxx’x First
Trigger Value, and Xxxxx’x Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger
Value, as the case may be”. Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words “the Value” and inserting in lieu
thereof “any one or more of the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value” and (2) deleting the second
instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
|
| (v) |
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days, and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
| (viii) |
[Reserved]
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the relevant
swap
curve on such date, as determined by the Valuation Agent in good faith and
in a
commercially reasonable manner. The Valuation Agent shall, upon request of
Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are open
for
business (including dealings in foreign exchange and foreign currency deposits)
in New York and the location of Party A, Party B and any Custodian, and (B)
in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in the case
of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits) in
New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x First Trigger Ratings Threshold.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Xxxxx’x
Second Trigger Event has occurred and been continuing for at least
30
Local Business Days, an amount equal to the greater of (a) zero
and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of
|
the
lesser of (x) the product of the Xxxxx’x First Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (y) the product of (i) Xxxxx’x
First Trigger Notional Amount Multiplier, (ii) the Scale Factor and (iii)
the
Notional Amount for such Transaction for the Calculation Period (each as
defined
in the related Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Event has occurred and been continuing for at least 30 Local Business
Days, an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the next payment due to be paid by Party A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
|
(1)
if
such Transaction is not a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (ii) the product of (a)
the
Xxxxx’x Second Trigger Notional Amount Multiplier, (b) the Scale Factor and (c)
and the Notional Amount for such Transaction for the Calculation Period which
includes such Valuation Date; or
(2)
if
such Transaction is a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger Transaction-Specific
Hedge DV01 Multiplier and DV01 for such Transaction and such Valuation Date
and
(ii) the product of (a) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (b) the Scale Factor and (c) the Notional Amount
for
such Transaction for the Calculation Period (each as defined in the related
Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity for
such
Transaction as determined by the Valuation Agent.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii) a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) the sum, for each Transaction to which this
Annex
relates, of the product of (i) the Volatility Buffer for such Transaction,
(ii) the Scale Factor and (iii) the Notional Amount of such Transaction
for the Calculation Period of such Transaction (each as defined
in the
related Confirmation) which includes such Valuation Date,
or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period (as
defined
in the related Confirmation) otherwise is not a specific dollar amount that
is
fixed at the inception of the Transaction, (ii) an interest rate cap, (iii)
an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Xxxxx’x First
Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Xxxxx’x
First Trigger Value, and the related Xxxxx’x Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
||||
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
||||
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
||||
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
The Royal Bank of Scotland plc
By: Greenwich Capital Markets, Inc., its
agent
|
Deutsche
Bank National Trust Company, not in its individual capacity,
but solely as
Trustee on behalf of Soundview Home Loan Trust, Asset-Backed
Certificates,
Series 2007-NS1
|
||||||
| By: | By: | ||||||
| Name: | Name: | ||||||
| Title: | Title: | ||||||
|
Date:
|
Date:
|
||||||
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
|
|
|
|
Financial
Markets
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
|
|
March
8, 2007
|
|
Deutsche
Bank National Trust Company, not in its individual capacity,
but solely as
Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest
Trust with
respect
to
the Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates,
Series
2007-NS1
(“Party
B”)
|
|
|
Deutsche
Bank National Trust Company
0000
Xxxx Xxxxx Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
c/o
RBS Financial Markets
Xxxxx
0, 000 Xxxxxxxxxxx
Xxxxxx
XX0X 3UR
Attn:
Head of Legal, Financial Markets
Tel:
00 000 000 0000
Fax:
00 000 000 0000
|
|
Copy
To:
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Legal Department - Derivatives Documentation
Tel.:
000-000-0000
Fax:
000-000-0000/34
|
|
Our
Reference Number:
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Party A and
Deutsche Bank National Trust Company, not individually, but solely as trustee
(the “Supplemental
Interest Trust Trustee”)
on
behalf of the supplemental interest trust with respect to the Soundview
Home
Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1 (the
“Supplemental
Interest Trust”)
created under the Pooling and Servicing Agreement, dated as of February
1, 2007,
among Financial Asset Securities Corp. (the “Depositor”),
Nationstar Mortgage, LLC. (the
“Servicer”)
and
Deutsche Bank National Trust Company (as “Trustee”)
(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
1.
This
Confirmation shall supplement, form a part of, and be subject to an agreement
in
the form of the ISDA Master Agreement (Multicurrency - Cross Border) as
published and copyrighted in 1992 by the International Swaps and Derivatives
Association, Inc. (the “ISDA
Master Agreement”),
as if
Party A and Party B had executed an agreement in such form on the date
hereof,
with a Schedule as set forth in Item 3 of this Confirmation, and an ISDA
Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New York Law
Only
version) as published and copyrighted in 1994 by the International Swaps
and
Derivatives Association, Inc., with Paragraph 13 thereof as set forth in
Annex A
hereto (the “Credit
Support Annex”).
For
the avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by such ISDA Master Agreement. In the event of any
inconsistency among any of the following documents, the relevant document
first
listed shall govern: (i) this Confirmation, exclusive of the provisions
set
forth in Item 3 hereof and Annex A hereto; (ii) the provisions set forth
in Item
3 hereof, which are incorporated by reference into the Schedule; (iii)
the
Credit Support Annex; (iv) the Definitions; and (v) the ISDA Master
Agreement.
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Swap
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for
such period on
Schedule A attached hereto.
|
|
Scale
Factor:
|
250
|
|
Trade
Date:
|
March
6, 2007
|
|
Effective
Date:
|
November
25, 2007
|
|
Termination
Date:
|
February
25, 2012, subject to adjustment in accordance with the Business
Day
Convention; provided, however, that for the purpose of determining
the
final Fixed Rate Payer Period End Date, Termination Date shall
be subject
to No Adjustment.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007, and ending on the Termination
Date, with No
Adjustment.
|
|
|
|
|
Fixed
Rate Payer
|
|
|
Payment
Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007, and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate:
|
5.200000%
|
|
Fixed
Amount:
|
To
be determined in accordance with the following formula:
|
|
|
250*Fixed
Rate*Notional Amount*Fixed Rate Day Count Fraction
|
|
Fixed
Rate Day
|
|
|
Count
Fraction:
|
30/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007, and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007, and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
|
|
|
250*Floating
Rate Option*Notional Amount*Floating Rate Day Count
Fraction
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
Actual/360
|
|
Additional
Floating Amount:
|
USD
2,600,000, to be paid by Party A on the Effective Date. Party
B hereby
instructs Party A to pay the Additional Floating Amount to
Greenwich
Capital Financial Products, Inc. The Parties agree, for convenience
and
ease of administration, the payment of the Additional Floating
Amount will
be netted with the payment of the Fixed Amounts in the confirmations
between the Parties with reference numbers IRG16221895.2A/.2B
and
IRG16221898.2A/.2B.
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided,
however,
that Section 5(a)(i) is hereby amended by replacing the word “third” with
the word “second”; provided,
further,
that notwithstanding anything to the contrary in Section 5(a)(i),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided,
however,
that notwithstanding anything to the contrary in Section 5(a)(iii)(1),
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(iii) unless (A)
a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the shareholders’ equity of Party A or, if applicable, the Eligible Guarantor,
in either case, as shown in the most recent annual audited financial statements
of such entity.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided
that, with respect to Party B only, Section 5(a)(vii)(4) is hereby
amended
by adding after the words “against it” the words “(excluding any
proceeding or petition instituted or presented by Party A or its
Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by deleting the
words “to (7) inclusive” and inserting lieu thereof “, (3), (4) as
amended, (5), (6) as amended, or (7)”. For purposes of Section
5(a)(vii)(6), the only relevant appointments are the appointments
of (i)
Deutsche Bank National Trust Company, as the Supplemental Interest
Trust
Trustee, Cap Trustee and Trustee, in each case in accordance with
the
Pooling and Servicing Agreement, (ii) Nationstar Mortgage, LLC,
as
Servicer, and (iii) any successor to Deutsche Bank National Trust
Company
or Nationstar Mortgage, LLC that is appointed in accordance with
the
Pooling and Servicing Agreement.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided,
however,
with
respect to “Illegality” the statement that such event will apply to a specific
party means that upon the occurrence of such a Termination Event with respect
to
such party, either party shall have the right to designate an Early Termination
Date in accordance with Section 6 of this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided
that Party A shall not be entitled to designate an Early Termination
Date
by reason of a Tax Event upon Merger in respect of which it is
the
Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i)
Market
Quotation will apply, provided,
however,
that in
the event that Party A is the Defaulting Party or the sole Affected Party
with
respect to a Tax Event upon Merger or an Additional Termination Event,
the
following provisions will apply:
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable
as of
the same day and time (without regard to different time zones) on or as
soon as
reasonably practicable before the Latest Settlement Amount Determination
Day (as
defined below). The day and time as of which those quotations are to be
obtained
will be selected in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is so obliged, after consultation
with
the other.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by
Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or
group of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days
after the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case
no later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon
acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided,
however,
that
(x) the amounts payable under the immediately preceding clauses (II) and
(III)
shall be subject to netting in accordance with Section 2(c) of this Agreement
and (y) notwithstanding any other provision of this Agreement, any amount
payable by Party A under the immediately preceding clause (III) shall not
be
netted-off against any amount payable by Party B under the immediately
preceding
clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B
shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a
negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
|
(ii)
The
Second Method will apply.
(g) “Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party
pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided
that it
shall not be a breach of this representation where reliance is placed on
clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
(B) Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
| (i) |
Party
A is a tax resident of the United
Kingdom;
|
| (ii) |
Party
A is a "foreign person" within the meaning of the applicable U.S.
Treasury
Regulations concerning information reporting and backup withholding
tax
(as in effect on January 1, 2001), unless Party A provides written
notice
to Party B that it is no longer a foreign person;
|
| (iii) |
in
respect of each Transaction Party A enters into through an office
or
discretionary agent in the United States or which otherwise is
allocated
(in whole or part) for United States federal income tax purposes
to such
United States trade or business, each payment received or to be
received
by Party A under such Transaction (or portion thereof, if applicable)
will
be effectively connected with its conduct of a trade or business
in the
United States; and
|
| (iv) |
in
respect of all other Transactions or portions thereof, no such
payment
received or to be received by Party A in connection with this Agreement
is
attributable to a trade or business carried on by it through a
permanent
establishment in the United States.
|
(B) Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party
B shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a)
For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
A
correct, complete and duly executed U.S. Internal Revenue Service
Form
(W-8BEN, W-8ECI, W-9 or other applicable form (or successor thereto)),
together with appropriate attachments, that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A
under this
Agreement.
|
Upon
the execution and delivery of this Agreement and upon reasonable
request.
|
||
|
Party
B
|
Any
form or document required or reasonably requested to allow the
other party
to make payments to Party B under the Agreement without any deduction
or
withholding for or on account of any Tax, or with such deduction
or
withholding at a reduced rate, which may include tax forms relating
to the
beneficial owner of payments to Party B under the Agreement from
time to
time.
|
Upon
the execution and delivery of this Agreement and at any time
that the last
such document delivered becomes incorrect or
out-of-date.
|
(b)
For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|||
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website
|
Yes
|
|||
|
Party
A
|
Interim
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s reporting period prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Promptly
upon becoming publicly available, if not available on Party A’s
website.
|
Yes
|
|||
|
Party
A and
Party
B
|
Opinion(s)
of counsel satisfactory to the other party
|
Upon
the execution and delivery of this Agreement
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A and Party B shall be those set
forth on
the first page of the Confirmation:
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B:
The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A:
The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B:
None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes
of this
Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a
“Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
|
(ii)
|
[Reserved]
|
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract participant” as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
(i) First
Rating Trigger Collateral.
If (A)
it is not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A
has failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex, then
an
Additional Termination Event shall have occurred with respect to Party
A and
Party A shall be the sole Affected Party with respect to such Additional
Termination Event.
(ii)
Second
Rating Trigger Replacement.
If (A) a
Required Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days and (B) (i) at least one Eligible Replacement has made
a
Firm Offer to be the transferee of all of Party A’s rights and obligations under
this Agreement (and such Firm Offer remains an offer that will become legally
binding upon such Eligible Replacement upon acceptance by the offeree)
and/or
(ii) an Eligible Guarantor has made a Firm Offer to provide an Eligible
Guarantee (and such Firm Offer remains an offer that will become legally
binding
upon such Eligible Guarantor immediately upon acceptance by the offeree),
then
an Additional Termination Event shall have occurred with respect to Party
A and
Party A shall be the sole Affected Party with respect to such Additional
Termination Event.
|
(iii)
|
Amendment
of the Pooling and Servicing Agreement.
If, without the prior written consent of Party A where such consent
is
required under the Pooling and Servicing Agreement (such consent
not to be
unreasonably withheld), an amendment is made to the Pooling and
Servicing
Agreement which amendment could reasonably be expected to have
a material
adverse effect on the interests of Party A (excluding, for the
avoidance
of doubt, any amendment to the Pooling and Servicing Agreement
that is
entered into solely for the purpose of appointing a successor
depositor,
servicer, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect
to Party B
and Party B shall be the sole Affected Party with respect to
such
Additional Termination Event.
|
|
(iv)
|
Regulation
AB. If
(i) the Depositor still has a reporting obligation with respect
to the
Transaction hereunder pursuant to Regulation AB and (ii) Party
A has not,
within the applicable time period specified in Part 5(e)(ii)(a)
below
after a Swap Disclosure Event, complied with any of the provisions
set
forth in Part 5(e)(ii) below, then an Additional Termination
Event shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
(v)
|
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement
(such
notice, the “Optional
Termination Notice”).
With respect to such Additional Termination Event: (A) Party
B shall be
the sole Affected Party; (B) notwithstanding anything to the
contrary in
Section 6(b)(iv) or Section 6(c)(i), the final Distribution Date
specified
in the Optional Termination Notice is hereby designated as the
Early
Termination Date for this Additional Termination Event in respect
of all
Affected Transactions; (C) Section 2(a)(iii)(2) shall not be
applicable to
any Affected Transaction in
connection with the Early Termination Date resulting from this
Additional
Termination Event; notwithstanding anything to the contrary in
Section
6(c)(ii), payments and deliveries under Section 2(a)(i) or Section
2(e) in
respect of the Terminated Transactions resulting from this Additional
Termination Event will be required to be made through and including
the
Early Termination Date designated
as a result of this Additional Termination Event; provided,
for the avoidance of doubt, that any such payments or deliveries
that are
made on or prior to such Early Termination Date will not be treated
as
Unpaid Amounts in determining the amount payable in respect of
such Early
Termination Date; (D) notwithstanding anything to the contrary
in Section
6(d)(i), (I) if, no later than 4:00 pm New York City time on
the day that
is four Business Days prior to the final Distribution Date specified
in
the Optional Termination Notice, the Servicer (as “Terminator”)
requests the amount of the Estimated Swap Termination Payment,
Party A
shall provide to the Terminator in writing (which may be done
in
electronic format) the amount of the Estimated Swap Termination
Payment no
later than 2:00 pm New York City time on the following Business
Day and
(II) if the Terminator provides written notice (which may be
done in
electronic format) to Party A no later than two Business Days
prior to the
final Distribution Date specified in the Optional Termination
Notice that
all requirements of the Optional Termination have been met, then
Party A
shall, no later than one Business Day prior to the final Distribution
Date
specified in the Optional Termination Notice, make the calculations
contemplated by Section 6(e) of the ISDA Master Agreement (as
amended
herein) and provide to the Terminator in writing (which may be
done in
electronic format) the amount payable by either Party B or Party
A in
respect of the related Early Termination Date in
connection with this Additional Termination Event; provided,
however,
that the amount payable by Party B, if any, in respect of the
related
Early Termination Date shall be the lesser of (x) the amount
calculated to
be due from Party B pursuant to Section 6(e) and (y) the Estimated
Swap
Termination Payment; and (E) notwithstanding anything to the
contrary in
this Agreement, any amount due from Party B to Party A in respect
of this
Additional Termination Event will be payable on the final Distribution
Date specified in the Optional Termination Notice and any amount
due from
Party A to Party B in respect of this Additional Termination
Event will be
payable one Business Day prior to the final Distribution Date
specified in
the Optional Termination Notice.
|
The
Terminator shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of the Terminator’s rights specified herein.
|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least
equal to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so
long as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
|
(e)
Compliance
with Regulation AB.
(i)
It
shall
be a swap disclosure event (“Swap
Disclosure Event”)
if, at
any time after the date hereof while the Depositor has reporting obligations
with respect to this Transaction pursuant to Regulation AB, the Depositor
or
Greenwich Capital Financial Products, Inc. (the “Sponsor”)
notifies Party A that the aggregate “significance percentage” (calculated in
accordance with the provisions of Item 1115 of Regulation AB) of all derivative
instruments provided by Party A and any of its affiliates to Party B
(collectively, the “Aggregate
Significance Percentage”)
is 9%
or more.
(ii)
Upon
the
occurrence of a Swap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB,
Party A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or
the
Issuing Entity), shall take one of the following actions:
(a)
provide
to the Sponsor and the Depositor: (i) if the Aggregate Significance Percentage
is 9% or more, but less than 10%, within thirty (30) days, either, at the
sole
discretion of Party A, the information required under Item 1115(b)(1) or
Item
1115(b)(2) of Regulation AB, (ii) if the Aggregate Significance Percentage
is
10% or more, but less than 20%, within five (5) Business Days, either,
at the
sole discretion of Party A, the information required under Item 1115(b)(1)
or
Item 1115(b)(2) of Regulation AB, (iii) if the Aggregate Significance Percentage
is 19% or more, but less than 20%,, within thirty (30) days, the information
required under Item 1115(b)(2) of Regulation AB or (iv) if the Aggregate
Significance Percentage is 20% or more, within five (5) Business Days,
the
information required under Item 1115(b)(2) of Regulation AB; or
(b) transfer
in a Permitted Transfer (provided that a Permitted Transfer pursuant to
this
subclause (b) shall not require satisfaction of the Rating Agency Condition)
its
obligations under the Transaction to a counterparty with the Approved Ratings
Thresholds (or which satisfies the Rating Agency Condition), that (x) provides
the information specified in clause (a) above to the Depositor and Sponsor
and
(y) enters into documentation substantially similar to the documentation
then in
place between Party A and Party B. For purposes of this subclause (b),
the
parties agree that National Westminster Bank Plc (“NatWest”)
shall
be an acceptable replacement for Party A, so long as NatWest is able to
provide
the information required under subclause (a) above and satisfy the requirements
of this subclause (b).
(iii)
For so long as the Aggregate Significance Percentage is 10% or more the
Depositor has reporting obligations with respect to this Transaction, Party
A
shall provide any updates to the information provided pursuant to clause
(ii)(a)
above to the Sponsor and the Depositor within five (5) Business Days following
the availability thereof (but in no event more than 6 months after the
end of
each of Party A’s fiscal year for any annual update and when available for any
interim update).
(iv)
All
information provided pursuant to clause (ii) shall be in a form suitable
for
conversion to the format required for filing by the Depositor with the
Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition,
any such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by
an
appropriate agreed-upon procedures letter from Party A’s accountants. If
permitted by Regulation AB, any such information may be provided by reference
to
or incorporation by reference from reports filed pursuant to the Exchange
Act.
(v)
The
Sponsor and the Depositor each shall be an express third party beneficiary
of
this Agreement with respect to Party A’s undertakings under this Part 5(e)
only.
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(e)(ii)(b) or Part 5(f), neither Party A nor Party B is permitted
to
assign, novate or transfer (whether by way of security or otherwise) as
a whole
or in part any of its rights, obligations or interests under the Agreement
or
any Transaction unless (a) the prior written consent of the other party
is
obtained and (b) the Rating Agency Condition has been satisfied with respect
to
S&P. At any time at which no Relevant Entity has credit ratings at least
equal to the Approved Ratings Threshold, Party A may make a Permitted
Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to be
the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agrees that, notwithstanding any provision
in
this Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from
the
Supplemental Interest Trust and the proceeds thereof, in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any
of the
directors, officers, employees, shareholders or affiliates of
the Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations asserted against Party B in connection with
any
transactions contemplated hereby. In the event that the Supplemental
Interest Trust and the proceeds thereof, funded in accordance
with the
priority of payments and other terms of the Pooling and Servicing
Agreement, should be insufficient to satisfy all claims outstanding
and
following the realization of the account held by the Supplemental
Interest
Trust and the proceeds thereof, any claims against or obligations
of Party
B under the ISDA Master Agreement or any other confirmation thereunder
still outstanding shall be extinguished and thereafter not revive.
The
Supplemental Interest Trust Trustee shall not have liability
for any
failure or delay in making a payment hereunder to Party A due
to any
failure or delay in receiving amounts in the account held by
the
Supplemental Interest Trust from the Trust created pursuant to
the Pooling
and Servicing Agreement. This provision will survive the termination
of
this Agreement.
|
|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii),
to the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any
Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such
Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided,
however,
that if the date on which the payment would have been payable
as
determined in accordance with Section 6(d)(ii) is a Distribution
Date,
such payment will be payable on such Distribution
Date.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Rating
Agencies
has been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or
condition;
provided
that failure to provide notice of such event or condition pursuant
to this
Part 5(l) shall not constitute an Event of Default or a Termination
Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the
Supplemental Interest Trust, or the trust formed pursuant to the Pooling
and
Servicing Agreement, in any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of
the
Certificates and any Notes. This provision will survive the termination
of this
Agreement.
|
(n)
|
Supplemental
Interest Trust Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed by Deutsche Bank National Trust Company
(“DBNTC”)
not in its individual capacity, but solely as Supplemental Interest
Trust
Trustee under the Pooling and Servicing Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder;
(b) DBNTC
has been directed pursuant to the Pooling and Servicing Agreement
to enter
into this Agreement and to perform its obligations hereunder;
(c) each of
the representations, undertakings and agreements herein made
on behalf of
the Supplemental Interest Trust is made and intended not as personal
representations of the Supplemental Interest Trust Trustee but
is made and
intended for the purpose of binding only the Supplemental Interest
Trust;
and (d) under no circumstances shall DBNTC
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided,
however,
that this severability provision shall not be applicable if any
provision
of Section 2, 5, 6, or 13 (or any definition or provision in
Section 14 to
the extent it relates to, or is used in or in connection with
any such
Section) shall be so held to be invalid or unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Party
B as Agent. Party
A acknowledges that Party B is acting as the Supplemental Interest
Trust
Trustee for the Supplemental Interest Trust under the Pooling
and
Servicing Agreement to carry out certain functions on behalf
of the
Supplemental Interest Trust.
|
|
(q)
|
[Reserved]
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at
any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any suit, action or proceeding relating to this Agreement or
any Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in
1992 by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A
to Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
|
Party
A’s
obligations under this Agreement rank pari
passu
with all
of Party A’s other unsecured, unsubordinated obligations except those
obligations preferred by operation of law.
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person.
|
|
(w)
|
Acknowledgements.
|
|
(i)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by
the parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
|
(x)
Agency
Role of Greenwich Capital Markets, Inc.
In
connection with this Agreement, Greenwich Capital Markets, Inc. has acted
as
agent on behalf of The Royal Bank of Scotland plc. Greenwich Capital Markets,
Inc. has not guaranteed and is not otherwise responsible for the obligations
of
The Royal Bank of Scotland plc under this Agreement.
(y) [Reserved]
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b) and (c) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor
is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had
no such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex).
“Eligible
Replacement”
means an
entity (i) that has credit ratings at least equal to the Approved Ratings
Threshold, (ii) has credit ratings at least equal to the Required Ratings
Threshold, provided,
for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor
with
credit ratings below the Approved Ratings Threshold will not cure or prevent
the
occurrence of a Collateral Event (as defined in the Credit Support Annex),
or
(iii) the present and future obligations (for the avoidance of doubt, not
limited to payment obligations) of which entity to Party B under this Agreement
are guaranteed pursuant to an Eligible Guarantee provided by an Eligible
Guarantor.
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(e)(ii)(b), Part 5(f) or the second sentence of Section 7 (as amended
herein)
to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement;
(b)
Party A and the Transferee are both “dealers in notional principal contracts”
within the meaning of Treasury regulations section 1.1001-4; (c) as of
the date
of such transfer the Transferee would not be required to withhold or deduct
on
account of Tax from any payments under this Agreement or would be required
to
gross up for such Tax under Section 2(d)(i)(4); (d) an Event of Default
or
Termination Event would not occur as a result of such transfer; (e) pursuant
to
a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or
expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Swap Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification of
its
terms, other than party names, dates relevant to the effective date of
such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of
the
substitute counterparty of the type included in Part 5(b)(iv) or Part 5(v),
notice information and account details; and (i) such transfer otherwise
complies
with the terms of the Pooling and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act
or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any
of the
Soundview Home Loan Trust 2007-NS1, Asset-Backed Certificates, Series 2007-NS1
(the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
4.
Account
Details and Settlement Information:
|
Payments
to Party A:
|
For
the account of The Royal Bank of Scotland Financial Markets
Fixed Income
and
Interest
Rate Derivative Operations, London SWIFT XXXXXX0XXXX
with
JPMorgan Chase Bank, New York XXXXXX00, ABA # 000000000
|
|
Account
Number 400930153
|
|
|
Payments
to Party B:
|
Deutsche
Bank National Trust Company
|
|
ABA
# 000000000
|
|
|
Account
#: 00000000
|
|
|
Account
Name: NYLTD Funds Control/Stars West
|
|
|
Ref:
Soundview 2007-NS1 Swap GC07V1
|
|
|
Payments
to Greenwich Capital
|
JPMorgan
Chase Bank, New York
|
|
Financial
Products, Inc. of the
|
ABA
# 000-0000-00
|
|
Additional
Floating Amount:
|
Acct
name: Greenwich Capital Financial Products
|
|
Acct
number: 000-0-00000
|
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
[Remainder
of this page intentionally left blank.]
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
| By | |||
| Name: | |||
| Title: |
Accepted
and confirmed as of the Trade Date written above:
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not
in
its individual capacity, but solely as Supplemental
Interest
Trust Trustee on behalf of the Supplemental Interest Trust with respect
to the
Soundview Home Loan Trust
2007-NS1,
Asset-Backed Certificates, Series 2007-NS1
| By | |||
| Name: | |||
| Title: |
SCHEDULE
A
(all
such
dates subject to No Adjustment with respect to Fixed Rate Payer Period
End Dates
and adjustment in accordance with the Following Business Day Convention
with
respect to Floating Rate Payer Period End Dates)
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
||
|
11/25/07
|
12/25/07
|
2,150,676.82
|
||
|
12/25/07
|
01/25/08
|
2,074,386.61
|
||
|
01/25/08
|
02/25/08
|
2,000,845.92
|
||
|
02/25/08
|
03/25/08
|
1,929,954.26
|
||
|
03/25/08
|
04/25/08
|
1,861,614.83
|
||
|
04/25/08
|
05/25/08
|
1,795,734.44
|
||
|
05/25/08
|
06/25/08
|
1,732,223.32
|
||
|
06/25/08
|
07/25/08
|
1,670,995.03
|
||
|
07/25/08
|
08/25/08
|
1,611,966.32
|
||
|
08/25/08
|
09/25/08
|
1,555,057.01
|
||
|
09/25/08
|
10/25/08
|
1,494,818.74
|
||
|
10/25/08
|
11/25/08
|
586,552.42
|
||
|
11/25/08
|
12/25/08
|
548,104.34
|
||
|
12/25/08
|
01/25/09
|
517,283.29
|
||
|
01/25/09
|
02/25/09
|
499,324.28
|
||
|
02/25/09
|
03/25/09
|
484,238.77
|
||
|
03/25/09
|
04/25/09
|
469,754.75
|
||
|
04/25/09
|
05/25/09
|
455,766.50
|
||
|
05/25/09
|
06/25/09
|
442,202.91
|
||
|
06/25/09
|
07/25/09
|
429,050.64
|
||
|
07/25/09
|
08/25/09
|
416,296.81
|
||
|
08/25/09
|
09/25/09
|
403,928.96
|
||
|
09/25/09
|
10/25/09
|
391,935.03
|
||
|
10/25/09
|
11/25/09
|
359,421.04
|
||
|
11/25/09
|
12/25/09
|
347,903.23
|
||
|
12/25/09
|
01/25/10
|
337,455.28
|
||
|
01/25/10
|
02/25/10
|
327,820.69
|
||
|
02/25/10
|
03/25/10
|
318,459.26
|
||
|
03/25/10
|
04/25/10
|
309,363.27
|
||
|
04/25/10
|
05/25/10
|
300,525.23
|
||
|
05/25/10
|
06/25/10
|
291,937.88
|
||
|
06/25/10
|
07/25/10
|
283,594.12
|
||
|
07/25/10
|
08/25/10
|
275,487.10
|
||
|
08/25/10
|
09/25/10
|
267,610.12
|
||
|
09/25/10
|
10/25/10
|
259,956.69
|
||
|
10/25/10
|
11/25/10
|
252,520.50
|
||
|
11/25/10
|
12/25/10
|
245,295.42
|
||
|
12/25/10
|
01/25/11
|
238,275.48
|
||
|
01/25/11
|
02/25/11
|
231,454.90
|
||
|
02/25/11
|
03/25/11
|
224,828.03
|
||
|
03/25/11
|
04/25/11
|
218,389.42
|
||
|
04/25/11
|
05/25/11
|
212,133.73
|
||
|
05/25/11
|
06/25/11
|
206,055.81
|
||
|
06/25/11
|
07/25/11
|
200,150.62
|
||
|
07/25/11
|
08/25/11
|
194,413.29
|
||
|
08/25/11
|
09/25/11
|
188,839.08
|
||
|
09/25/11
|
10/25/11
|
183,423.36
|
||
|
10/25/11
|
11/25/11
|
178,161.06
|
||
|
11/25/11
|
12/25/11
|
173,049.55
|
||
|
12/25/11
|
01/25/12
|
168,083.44
|
||
|
01/25/12
|
02/25/12
|
163,258.63
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of March 8, 2007 between
The
Royal
Bank of Scotland plc (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not in its individual capacity, but solely
as
Supplemental Interest Trust
Trustee
(the “Supplemental
Interest Trust Trustee”)
on
behalf of the Supplemental Interest Trust (the
“Supplemental
Interest Trust”)
with
respect to the Soundview Home Loan Trust 2007-NS1, Asset-Backed
Certificates,
Series 2007-NS1
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated March 8, 2007, between
Party A
and Party B, Reference Number D16221894.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by
deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party, and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the
Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
|
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the
S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
ISDA
Collateral
Asset
Definition
(ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
Moody’s
First
Trigger Valuation
Percentage
|
Moody’s
Second
Trigger
Valuation
Percentage
|
||||
|
(A)
US-CASH
|
N/A
|
100%
|
100%
|
100%
|
||||
|
(B)
US-TBILL
US-TNOTE
US-TBOND
|
||||||||
|
1
or less
|
98.9%
|
100%
|
100%
|
|||||
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|||||
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|||||
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|||||
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|||||
|
More
than 20
|
88.6%
|
100%
|
88%
|
|||||
|
(C)
US-GNMA
US-FNMA
US-FHLMC
|
||||||||
|
1
or less
|
98.5%
|
100%
|
99%
|
|||||
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|||||
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|||||
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|||||
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|||||
|
More
than 20
|
84.4%
|
100%
|
87%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Paragraph 13(b)(ii)
are
taken from the Collateral Asset Definitions (First Edition June 2003) as
published and copyrighted in 2003 by the International Swaps and Derivatives
Association, Inc.
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for
at least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B;
provided,
however,
that if the aggregate Certificate Principal Balance of the Certificates
and the aggregate principal balance of the Notes rated by S&P is at
the time of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 1,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A. All calculations by the Valuation Agent must be
made in
accordance with standard market
practice.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P Credit Support Amount,
the Xxxxx’x First Trigger Credit Support Amount, or the Xxxxx’x Second
Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date
of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to
the extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external xxxx in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and
willing to
enter into such Transaction in the absence of the current derivative
provider, provided
that an external xxxx xxx not be obtained from the same Reference
Market-maker more than four times in any 12-month period. The
Valuation
Agent shall obtain these external marks directly or through an
independent
third party, in either case at no cost to Party B. The Valuation
Agent
shall calculate on each Valuation Date (for purposes of this
paragraph,
the last Local Business Day in each calendar month referred to
above shall
be considered a Valuation Date) the Secured Party’s Exposure based on the
greater of the Valuation Agent’s internal marks and the external marks
received. If the S&P Value on any such Valuation Date of all Posted
Credit Support then held by the Secured Party is less than the
S&P
Credit Support Amount on such Valuation Date (in each case as
determined
pursuant to this paragraph), Party A shall, within three Local
Business
Days of such Valuation Date, Transfer to the Secured Party Eligible
Credit
Support having an S&P Value as of the date of Transfer at least equal
to such deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation
Agent shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 11:00 a.m. New York time on the Local Business Day following
the
date on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for
the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time for
such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the
Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the
bid
price listed or quoted (as the case may be) at the Valuation Time for the
day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to
the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as Supplemental Interest
Trust Trustee or (B) any entity other than the entity then serving as
Supplemental Interest Trust Trustee if such other entity (or, to the extent
applicable, its parent company or credit support provider) shall then have
a
long-term unsecured and unsubordinated debt rating of at least “A+” by S&P
and at least “A1” by Xxxxx’x.
Initially,
the Custodian
for
Party B is: the Supplemental Interest Trust Trustee of the Supplemental
Interest
Trust.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) interest-bearing Permitted Investments
rated at least AAAm or AAAm-G by S&P and Prime-1 by Xxxxx’x or Aaa by
Xxxxx’x as directed by Party A (unless (x) an Event of Default or an
Additional Termination Event has occurred with respect to which
Party A is
the defaulting or sole Affected Party or (y) an Early Termination
Date has
been designated, in which case such investment shall be held
uninvested).
Gains incurred in respect of any investment of Posted Collateral
in the
form of Cash in Permitted Investments as directed by Party A
shall be for
the account of Party A. Party A directs the Custodian to deposit
any
Posted Collateral that is in the form of Cash into an account
that
satisfies the criteria in the second preceding sentence and that
earns
interest at prevailing rates.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on
any other
Local Business Day on which Posted Collateral in the form of
Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be
made pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may
from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian, at such address as will be provided from time to
time.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
Party
A account details:
For
the
account of The Royal Bank of Scotland Financial Markets Fixed Income and
Interest Rate Derivative Operations, London SWIFT XXXXXX0XXXX with JPMorgan
Chase Bank, New York XXXXXX00, ABA # 000000000
Account
Number 400930153
Party
B’s Custodian account details for holding collateral:
Deutsche
Bank National Trust Company
ABA
000-000-000
A/C
#
01419663
A/C
Name
NYLTD Funds Control - Stars West
Ref:
Soundview 2007-NS1 Cap/Swap- Collateral Account
Attn:
GC07V1
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
Eligible Account, and hold, record and identify all Posted Collateral
in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Xxxxx’x First
Trigger Value, or Xxxxx’x Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger
Value, as the case may be”. Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words “the Value” and inserting in lieu
thereof “any one or more of the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value” and (2) deleting the second
instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
|
| (v) |
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days, and (B) such failure is not remedied
on or
before the third Local Business Day after notice of such failure
is given
to Party A.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the
Pledgor will
be responsible for, and will reimburse the Secured Party for,
all transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
| (viii) |
[Reserved]
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the relevant
swap
curve on such date, as determined by the Valuation Agent in good faith
and in a
commercially reasonable manner. The Valuation Agent shall, upon request
of Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are open
for
business (including dealings in foreign exchange and foreign currency deposits)
in New York and the location of Party A, Party B and any Custodian, and
(B) in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in the
case of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits)
in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x First Trigger Ratings Threshold.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Xxxxx’x
Second Trigger Event has occurred and been continuing for at
least 30
Local Business Days, an amount equal to the greater of (a) zero
and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of
|
the
lesser of (x) the product of the Xxxxx’x First Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (y) the product of (i)
Xxxxx’x
First Trigger Notional Amount Multiplier, (ii) the Scale Factor and (iii)
the
Notional Amount for such Transaction for the Calculation Period (each as
defined
in the related Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Event has occurred and been continuing for at least 30 Local
Business
Days, an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the next payment due to be paid by Party A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
|
(1)
if
such Transaction is not a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (ii) the product of (a)
the
Xxxxx’x Second Trigger Notional Amount Multiplier, (b) the Scale Factor and (c)
and the Notional Amount for such Transaction for the Calculation Period
which
includes such Valuation Date; or
(2)
if
such Transaction is a Transaction-Specific Hedge,
the
lesser of (i) the product of the Xxxxx’x Second Trigger Transaction-Specific
Hedge DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(ii) the product of (a) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (b) the Scale Factor and (c) the Notional Amount
for
such Transaction for the Calculation Period (each as defined in the related
Confirmation) which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity for
such
Transaction as determined by the Valuation Agent.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii) a
S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) the sum, for each Transaction to which
this Annex
relates, of the product of (i) the Volatility Buffer for such
Transaction,
(ii) the Scale Factor and (iii) the Notional Amount of such Transaction
for the Calculation Period of such Transaction (each as defined
in the
related Confirmation) which includes such Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period (as
defined
in the related Confirmation) otherwise is not a specific dollar amount
that is
fixed at the inception of the Transaction, (ii) an interest rate cap, (iii)
an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Xxxxx’x First
Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Xxxxx’x
First Trigger Value, and the related Xxxxx’x Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
||||
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
||||
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
||||
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
The Royal Bank of Scotland plc
By: Greenwich Capital Markets, Inc., its
agent
|
Deutsche
Bank National Trust Company, not in its individual capacity,
but solely as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the Soundview Home Loan Trust 2007-NS1,
Asset-Backed
Certificates, Series 2007-NS1
|
||||||
| By: | By: | ||||||
| Name: | Name: | ||||||
| Title: | Title: | ||||||
|
Date:
|
Date:
|
||||||
EXHIBIT
R
[RESERVED]
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Trustee, or may be the Master
Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Trustee
-
fiduciary of the transaction
Credit
Risk Manager - the party providing oversight of the Servicer
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements.
Key:
X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Trustee
|
Custodian
|
|
General
Servicing Considerations
|
|||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
||||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
X
|
||
|
Cash
Collection and Administration
|
|||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
|
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
X
|
||
|
1122(d)(4)(ii)
|
Pool
assets 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 pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|||
|
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.
|
X
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
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
|
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 4.07(a)(iv).
Under
Item 1 of Form 10-D: a) items marked “4.02 statement” are required to be
included in the periodic Distribution Date statement under Section 4.02,
provided by the Trustee based on information received from the Servicer;
and b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.02 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
4.02
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
4.02
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.02
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.02
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
4.02
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
4.02
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.02
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.02
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.02
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
4.02
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.02
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of
each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
4.02
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.02
statement: Servicer
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.02
statement: Servicer
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report; Servicer
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Servicer
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.02
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor and Servicer
Form
10-D report: Depositor, and Servicer
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Depositor
Custodian
|
||
|
3
|
Sales
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
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Trustee
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*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.
|
|||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
Depositor
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.
|
|||
|
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
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
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 to this Agreement
|
||
|
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 to this Agreement
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Depositor, Servicer or Trustee, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, Trustee, Swap Provider, Cap Provicer,
Custodian
|
Depositor/Servicer/Trustee
|
||
|
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 4.02 statement
|
N/A
|
||
|
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
|
Party
requesting material modification
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
||
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Master Servicer or Trustee
|
||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Servicer
Depositor
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
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
|
||
|
7.01
|
Regulation
FD Disclosure
|
All
parties to this Agreement
|
|
|
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 security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
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
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
||
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
Depositor
Depositor
|
||
|
Item
1117 -
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Issuing
entity
Servicer
Depositor
Custodian
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
Seller
Depositor
Trustee
Issuing
entity
Servicer
Depositor
Custodian
Depositor
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 -Servicer Compliance Statement
|
Servicer
|
||
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request
