GS MORTGAGE SECURITIES CORP., Depositor, HOME LOAN SERVICES, INC., Servicer, and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and Supplemental Interest Trust Trustee POOLING AND SERVICING AGREEMENT Dated as of April 1, 2007 FFMLT 2007-FFB-SS MORTGAGE...
GS
MORTGAGE SECURITIES CORP.,
Depositor,
HOME
LOAN
SERVICES, INC.,
Servicer,
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Supplemental Interest Trust Trustee
_____________________________________________
Dated
as
of April 1, 2007
_____________________________________________
FFMLT
2007-FFB-SS
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-FFB-SS
TABLE
OF
CONTENTS
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Definitions
|
|
ARTICLE
II
|
|
|
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
|
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
|
Section
2.02
|
Acceptance
by the Trustee of the Mortgage Loans
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Servicer
|
|
Section
2.04
|
[Reserved].
|
|
Section
2.05
|
Execution
and Delivery of Certificates
|
|
Section
2.06
|
REMIC
Matters
|
|
Section
2.07
|
Representations
and Warranties of the Depositor
|
|
Section
2.08
|
Enforcement
of Purchaser and Responsible Party Obligations.
|
|
Section
2.09
|
Purposes
and Powers of the Trust
|
|
ARTICLE
III
|
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|
|
Section
3.01
|
Servicer
to Service Mortgage Loans
|
|
Section
3.02
|
Subservicing
Agreements between the Servicer and Subservicers
|
|
Section
3.03
|
Successor
Subservicers
|
|
Section
3.04
|
Liability
of the Servicer
|
|
Section
3.05
|
No
Contractual Relationship between Subservicers and the
Trustee
|
|
Section
3.06
|
Assumption
or Termination of Subservicing Agreements by Trustee
|
|
Section
3.07
|
Collection
of Certain Mortgage Loan Payments
|
|
Section
3.08
|
Subservicing
Accounts
|
|
Section
3.09
|
[Reserved].
|
|
Section
3.10
|
Collection
Accounts
|
|
Section
3.11
|
Withdrawals
from the Collection Account
|
|
Section
3.12
|
Investment
of Funds in the Collection Account and the Distribution
Account
|
|
Section
3.13
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity
Coverage
|
|
Section
3.14
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements
|
|
Section
3.15
|
Realization
upon Defaulted Mortgage Loans
|
|
Section
3.16
|
Release
of Mortgage Files
|
|
Section
3.17
|
Title,
Conservation and Disposition of REO Property
|
|
Section
3.18
|
[Reserved].
|
|
Section
3.19
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans
|
|
Section
3.20
|
Documents,
Records and Funds in Possession of the Servicer to Be Held for the
Trustee
|
|
Section
3.21
|
Servicing
Compensation
|
|
Section
3.22
|
Annual
Statement as to Compliance
|
|
Section
3.23
|
Assessments
of Compliance and Attestation Reports
|
|
Section
3.24
|
Trustee
to Act as Servicer
|
|
Section
3.25
|
Compensating
Interest
|
|
Section
3.26
|
Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act
|
|
Section
3.27
|
Excess
Reserve Fund Accounts; Distribution Accounts
|
|
Section
3.28
|
Optional
Purchase of Delinquent Mortgage Loans
|
|
Section
3.29
|
Subordination
Liens.
|
|
Section
3.30
|
Advisory
Agreement.
|
|
Section
3.31
|
High
Cost Mortgage Loans.
|
|
ARTICLE
IV
|
|
|
DISTRIBUTIONS
AND ADVANCES BY THE ServicErS
|
|
|
Section
4.01
|
Advances
|
|
Section
4.02
|
Priorities
of Distribution
|
|
Section
4.03
|
[Reserved].
|
|
Section
4.04
|
Monthly
Statements to Certificateholders
|
|
Section
4.05
|
Certain
Matters Relating to the Determination of LIBOR
|
|
Section
4.06
|
Allocation
of Applied Realized Loss Amounts
|
|
Section
4.07
|
Distributions
on the REMIC Regular Interests.
|
|
Section
4.08
|
Supplemental
Interest Trust
|
|
Section
4.09
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
ARTICLE
V
|
|
|
THE
CERTIFICATES
|
|
|
Section
5.01
|
The
Certificates
|
|
Section
5.02
|
Certificate
Register; 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
|
Access
to List of Certificateholders’ Names and Addresses
|
|
Section
5.06
|
Maintenance
of Office or Agency
|
|
ARTICLE
VI
|
|
|
THE
DEPOSITOR AND THE SERVICERS
|
|
|
Section
6.01
|
Respective
Liabilities of the Depositor and the Servicer
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor or the Servicer
|
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Servicer and Others
|
|
Section
6.04
|
Limitation
on Resignation of the Servicer
|
|
Section
6.05
|
Additional
Indemnification by the Servicer; Third Party Claims.
|
|
ARTICLE
VII
|
|
|
DEFAULT
|
|
|
Section
7.01
|
Events
of Default
|
|
Section
7.02
|
Trustee
to Act; Appointment of Successor Servicer
|
|
Section
7.03
|
Notification
to Certificateholders
|
|
ARTICLE
VIII
|
|
|
CONCERNING
THE TRUSTEE
|
|
|
Section
8.01
|
Duties
of the 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’s
Fees and Expenses
|
|
Section
8.06
|
Eligibility
Requirements for the Trustee
|
|
Section
8.07
|
Resignation
and Removal of the Trustee
|
|
Section
8.08
|
Successor
Trustee
|
|
Section
8.09
|
Merger
or Consolidation of the Trustee
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
|
Section
8.11
|
Tax
Matters
|
|
Section
8.12
|
Periodic
Filings
|
|
Section
8.13
|
Tax
Classification of the Excess Reserve Fund Accounts
|
|
Section
8.14
|
Claims
on the Policy; Policy Payments Account.
|
|
ARTICLE
IX
|
|
|
TERMINATION
|
|
|
Section
9.01
|
Termination
upon Liquidation or Purchase of the Related Mortgage
Loans
|
|
Section
9.02
|
Final
Distribution on the Certificates
|
|
Section
9.03
|
Additional
Termination Requirements
|
|
ARTICLE
X
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
10.01
|
Amendment
|
|
Section
10.02
|
Recordation
of Agreement; Counterparts
|
|
Section
10.03
|
Governing
Law
|
|
Section
10.04
|
Intention
of Parties
|
|
Section
10.05
|
Notices
|
|
Section
10.06
|
Severability
of Provisions
|
|
Section
10.07
|
Assignment;
Sales; Advance Facilities
|
|
Section
10.08
|
Limitation
on Rights of Certificateholders
|
|
Section
10.09
|
Inspection
and Audit Rights
|
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid
|
|
Section
10.11
|
[Reserved].
|
|
Section
10.12
|
Waiver
of Jury Trial
|
|
Section
10.13
|
Limitation
of Damages
|
|
Section
10.14
|
Third
Party Rights
|
|
Section
10.15
|
No
Solicitation
|
|
Section
10.16
|
Regulation
AB Compliance; Intent of the Parties;
Reasonableness
|
|
SCHEDULES
|
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
Schedule
II
|
Representations
and Warranties of Home Loan Services, as Servicer
|
|
EXHIBITS
|
|
|
Exhibit
A
|
Form of
Class A and Class M-[__] Certificates
|
|
Exhibit
B
|
Form of
Class P Certificate
|
|
Exhibit
C
|
Form of
Class R Certificate
|
|
Exhibit
D-1
|
Form of
Class X Certificate
|
|
Exhibit
D-2
|
Form
of Class X-1 Certificate
|
|
Exhibit
E
|
Form of
Initial Certification of Trustee
|
|
Exhibit
F
|
Form of
Document Certification and Exception Report of Trustee
|
|
Exhibit
G
|
Form of
Residual Transfer Affidavit
|
|
Exhibit
H
|
Form of
Transferor Certificate
|
|
Exhibit
I-1
|
Form of
Rule 144A Letter
|
|
Exhibit
I-2
|
Form
of Investment Letter (Non Rule 144A)
|
|
Exhibit
J
|
Form of
Request for Release
|
|
Exhibit
K
|
Contents
of Each Mortgage File
|
|
Exhibit
L
|
[Reserved]
|
|
Exhibit
M
|
Form
of Certification to be provided with Form 10-K
|
|
Exhibit
N
|
Form
of Trustee Certification to be provided to Depositor
|
|
Exhibit
O
|
Form
of Servicer Certification to be provided to Depositor
|
|
Exhibit
P
|
Form
of Power of Attorney
|
|
Exhibit
Q
|
National
City Bank Agreements
|
|
Exhibit
R
|
Servicing
Criteria to be Addressed in Assessment of Compliance
|
|
Exhibit
S
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
T
|
Interest
Rate Swap Agreement
|
|
Exhibit
U
|
Form
of Additional Disclosure Notification
|
|
Exhibit
V
|
Financial
Guaranty Insurance Policy
|
THIS
POOLING AND SERVICING AGREEMENT, dated as of April 1, 2007, is among GS MORTGAGE
SECURITIES CORP., a Delaware corporation (the “Depositor”), HOME LOAN SERVICES,
INC., a Delaware corporation, as servicer (the “Servicer”) and DEUTSCHE BANK
NATIONAL TRUST COMPANY, a national banking association, as trustee (the
“Trustee”).
W
I T
N E S S E T H:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund will
consist of a pool of assets comprised of the Mortgage Loans and certain other
related assets subject to this Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (other than the related Prepayment Premiums, the Interest Rate
Swap Agreement, the Supplemental Interest Trust, the Supplemental Interest
Trust
Account and the Excess Reserve Fund Account) as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC I”.
The Class R-1 Interest will be the sole class of “residual interests” in REMIC I
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
of the REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
|
Designation
|
REMIC
I Remittance Rate
|
Initial
Uncertificated Balance
|
Latest
Possible Maturity Date (1)
|
|
|
I
|
Variable(2)
|
$
|
45,192,626.76
|
July
25, 2035
|
|
I-1-A
|
Variable(2)
|
$
|
13,145,353.50
|
July
25, 2035
|
|
I-1-B
|
Variable(2)
|
$
|
13,145,353.50
|
July
25, 2035
|
|
I-2-A
|
Variable(2)
|
$
|
11,896,467.00
|
July
25, 2035
|
|
I-2-B
|
Variable(2)
|
$
|
11,896,467.00
|
July
25, 2035
|
|
I-3-A
|
Variable(2)
|
$
|
11,199,505.00
|
July
25, 2035
|
|
I-3-B
|
Variable(2)
|
$
|
11,199,505.00
|
July
25, 2035
|
|
I-4-A
|
Variable(2)
|
$
|
10,596,201.00
|
July
25, 2035
|
|
I-4-B
|
Variable(2)
|
$
|
10,596,201.00
|
July
25, 2035
|
|
I-5-A
|
Variable(2)
|
$
|
9,976,387.00
|
July
25, 2035
|
|
I-5-B
|
Variable(2)
|
$
|
9,976,387.00
|
July
25, 2035
|
|
I-6-A
|
Variable(2)
|
$
|
9,416,252.00
|
July
25, 2035
|
|
I-6-B
|
Variable(2)
|
$
|
9,416,252.00
|
July
25, 2035
|
|
I-7-A
|
Variable(2)
|
$
|
8,909,330.00
|
July
25, 2035
|
|
I-7-B
|
Variable(2)
|
$
|
8,909,330.00
|
July
25, 2035
|
|
I-8-A
|
Variable(2)
|
$
|
8,389,638.50
|
July
25, 2035
|
|
I-8-B
|
Variable(2)
|
$
|
8,389,638.50
|
July
25, 2035
|
|
I-9-A
|
Variable(2)
|
$
|
7,938,223.00
|
July
25, 2035
|
|
I-9-B
|
Variable(2)
|
$
|
7,938,223.00
|
July
25, 2035
|
|
I-10-A
|
Variable(2)
|
$
|
7,382,478.00
|
July
25, 2035
|
|
I-10-B
|
Variable(2)
|
$
|
7,382,478.00
|
July
25, 2035
|
|
I-11-A
|
Variable(2)
|
$
|
6,706,046.50
|
July
25, 2035
|
|
I-11-B
|
Variable(2)
|
$
|
6,706,046.50
|
July
25, 2035
|
|
I-12-A
|
Variable(2)
|
$
|
6,325,485.00
|
July
25, 2035
|
|
I-12-B
|
Variable(2)
|
$
|
6,325,485.00
|
July
25, 2035
|
|
I-13-A
|
Variable(2)
|
$
|
5,966,487.50
|
July
25, 2035
|
|
I-13-B
|
Variable(2)
|
$
|
5,966,487.50
|
July
25, 2035
|
|
I-14-A
|
Variable(2)
|
$
|
5,627,832.50
|
July
25, 2035
|
|
I-14-B
|
Variable(2)
|
$
|
5,627,832.50
|
July
25, 2035
|
|
I-15-A
|
Variable(2)
|
$
|
5,308,371.00
|
July
25, 2035
|
|
I-15-B
|
Variable(2)
|
$
|
5,308,371.00
|
July
25, 2035
|
|
I-16-A
|
Variable(2)
|
$
|
5,007,015.00
|
July
25, 2035
|
|
I-16-B
|
Variable(2)
|
$
|
5,007,015.00
|
July
25, 2035
|
|
I-17-A
|
Variable(2)
|
$
|
4,722,739.00
|
July
25, 2035
|
|
I-17-B
|
Variable(2)
|
$
|
4,722,739.00
|
July
25, 2035
|
|
I-18-A
|
Variable(2)
|
$
|
4,454,579.50
|
July
25, 2035
|
|
I-18-B
|
Variable(2)
|
$
|
4,454,579.50
|
July
25, 2035
|
|
I-19-A
|
Variable(2)
|
$
|
4,201,620.00
|
July
25, 2035
|
|
I-19-B
|
Variable(2)
|
$
|
4,201,620.00
|
July
25, 2035
|
|
I-20-A
|
Variable(2)
|
$
|
3,963,003.50
|
July
25, 2035
|
|
I-20-B
|
Variable(2)
|
$
|
3,963,003.50
|
July
25, 2035
|
|
I-21-A
|
Variable(2)
|
$
|
1,946,808.00
|
July
25, 2035
|
|
I-21-B
|
Variable(2)
|
$
|
1,946,808.00
|
July
25, 2035
|
|
I-22-A
|
Variable(2)
|
$
|
348,961.50
|
July
25, 2035
|
|
I-22-B
|
Variable(2)
|
$
|
348,961.50
|
July
25, 2035
|
|
I-23-A
|
Variable(2)
|
$
|
2,331,041.00
|
July
25, 2035
|
|
I-23-B
|
Variable(2)
|
$
|
2,331,041.00
|
July
25, 2035
|
|
I-24-A
|
Variable(2)
|
$
|
2,198,577.00
|
July
25, 2035
|
|
I-24-B
|
Variable(2)
|
$
|
2,198,577.00
|
July
25, 2035
|
|
I-25-A
|
Variable(2)
|
$
|
2,073,629.00
|
July
25, 2035
|
|
I-25-B
|
Variable(2)
|
$
|
2,073,629.00
|
July
25, 2035
|
|
I-26-A
|
Variable(2)
|
$
|
1,955,768.00
|
July
25, 2035
|
|
I-26-B
|
Variable(2)
|
$
|
1,955,768.00
|
July
25, 2035
|
|
I-27-A
|
Variable(2)
|
$
|
1,844,596.00
|
July
25, 2035
|
|
I-27-B
|
Variable(2)
|
$
|
1,844,596.00
|
July
25, 2035
|
|
I-28-A
|
Variable(2)
|
$
|
1,739,731.50
|
July
25, 2035
|
|
I-28-B
|
Variable(2)
|
$
|
1,739,731.50
|
July
25, 2035
|
|
I-29-A
|
Variable(2)
|
$
|
1,640,817.50
|
July
25, 2035
|
|
I-29-B
|
Variable(2)
|
$
|
1,640,817.50
|
July
25, 2035
|
|
I-30-A
|
Variable(2)
|
$
|
1,547,518.00
|
July
25, 2035
|
|
I-30-B
|
Variable(2)
|
$
|
1,547,518.00
|
July
25, 2035
|
|
I-31-A
|
Variable(2)
|
$
|
1,459,513.00
|
July
25, 2035
|
|
I-31-B
|
Variable(2)
|
$
|
1,459,513.00
|
July
25, 2035
|
|
I-32-A
|
Variable(2)
|
$
|
1,376,505.00
|
July
25, 2035
|
|
I-32-B
|
Variable(2)
|
$
|
1,376,505.00
|
July
25, 2035
|
|
I-33-A
|
Variable(2)
|
$
|
1,298,208.50
|
July
25, 2035
|
|
I-33-B
|
Variable(2)
|
$
|
1,298,208.50
|
July
25, 2035
|
|
I-34-A
|
Variable(2)
|
$
|
1,224,357.50
|
July
25, 2035
|
|
I-34-B
|
Variable(2)
|
$
|
1,224,357.50
|
July
25, 2035
|
|
I-35-A
|
Variable(2)
|
$
|
1,154,699.00
|
July
25, 2035
|
|
I-35-B
|
Variable(2)
|
$
|
1,154,699.00
|
July
25, 2035
|
|
I-36-A
|
Variable(2)
|
$
|
1,088,997.50
|
July
25, 2035
|
|
I-36-B
|
Variable(2)
|
$
|
1,088,997.50
|
July
25, 2035
|
|
I-37-A
|
Variable(2)
|
$
|
1,027,026.50
|
July
25, 2035
|
|
I-37-B
|
Variable(2)
|
$
|
1,027,026.50
|
July
25, 2035
|
|
I-38-A
|
Variable(2)
|
$
|
968,575.00
|
July
25, 2035
|
|
I-38-B
|
Variable(2)
|
$
|
968,575.00
|
July
25, 2035
|
|
I-39-A
|
Variable(2)
|
$
|
913,444.00
|
July
25, 2035
|
|
I-39-B
|
Variable(2)
|
$
|
913,444.00
|
July
25, 2035
|
|
I-40-A
|
Variable(2)
|
$
|
861,445.50
|
July
25, 2035
|
|
I-40-B
|
Variable(2)
|
$
|
861,445.50
|
July
25, 2035
|
|
I-41-A
|
Variable(2)
|
$
|
812,400.00
|
July
25, 2035
|
|
I-41-B
|
Variable(2)
|
$
|
812,400.00
|
July
25, 2035
|
|
I-42-A
|
Variable(2)
|
$
|
766,142.00
|
July
25, 2035
|
|
I-42-B
|
Variable(2)
|
$
|
766,142.00
|
July
25, 2035
|
|
I-43-A
|
Variable(2)
|
$
|
722,512.50
|
July
25, 2035
|
|
I-43-B
|
Variable(2)
|
$
|
722,512.50
|
July
25, 2035
|
|
I-44-A
|
Variable(2)
|
$
|
681,362.50
|
July
25, 2035
|
|
I-44-B
|
Variable(2)
|
$
|
681,362.50
|
July
25, 2035
|
|
I-45-A
|
Variable(2)
|
$
|
642,551.50
|
July
25, 2035
|
|
I-45-B
|
Variable(2)
|
$
|
642,551.50
|
July
25, 2035
|
|
I-46-A
|
Variable(2)
|
$
|
605,946.50
|
July
25, 2035
|
|
I-46-B
|
Variable(2)
|
$
|
605,946.50
|
July
25, 2035
|
|
I-47-A
|
Variable(2)
|
$
|
571,423.00
|
July
25, 2035
|
|
I-47-B
|
Variable(2)
|
$
|
571,423.00
|
July
25, 2035
|
|
I-48-A
|
Variable(2)
|
$
|
538,861.00
|
July
25, 2035
|
|
I-48-B
|
Variable(2)
|
$
|
538,861.00
|
July
25, 2035
|
|
I-49-A
|
Variable(2)
|
$
|
508,151.50
|
July
25, 2035
|
|
I-49-B
|
Variable(2)
|
$
|
508,151.50
|
July
25, 2035
|
|
I-50-A
|
Variable(2)
|
$
|
479,188.50
|
July
25, 2035
|
|
I-50-B
|
Variable(2)
|
$
|
479,188.50
|
July
25, 2035
|
|
I-51-A
|
Variable(2)
|
$
|
451,872.50
|
July
25, 2035
|
|
I-51-B
|
Variable(2)
|
$
|
451,872.50
|
July
25, 2035
|
|
I-52-A
|
Variable(2)
|
$
|
426,109.50
|
July
25, 2035
|
|
I-52-B
|
Variable(2)
|
$
|
426,109.50
|
July
25, 2035
|
|
I-53-A
|
Variable(2)
|
$
|
401,813.50
|
July
25, 2035
|
|
I-53-B
|
Variable(2)
|
$
|
401,813.50
|
July
25, 2035
|
|
I-54-A
|
Variable(2)
|
$
|
378,899.00
|
July
25, 2035
|
|
I-54-B
|
Variable(2)
|
$
|
378,899.00
|
July
25, 2035
|
|
I-55-A
|
Variable(2)
|
$
|
357,287.50
|
July
25, 2035
|
|
I-55-B
|
Variable(2)
|
$
|
357,287.50
|
July
25, 2035
|
|
I-56-A
|
Variable(2)
|
$
|
336,907.00
|
July
25, 2035
|
|
I-56-B
|
Variable(2)
|
$
|
336,907.00
|
July
25, 2035
|
|
I-57-A
|
Variable(2)
|
$
|
317,687.00
|
July
25, 2035
|
|
I-57-B
|
Variable(2)
|
$
|
317,687.00
|
July
25, 2035
|
___________________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-2 Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the REMIC II Remittance Rate, the initial
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
of the REMIC II Regular Interests (as defined herein). None of the REMIC II
Regular Interests will be certificated.
|
Designation
|
REMIC
II Remittance Rate
|
Initial
Uncertificated Balance
|
Latest
Possible Maturity Date (1)
|
|
|
AA
|
Variable(2)
|
$
|
414,988,177.28
|
July
25, 2035
|
|
A
|
Variable(2)
|
$
|
2,951,500.00
|
July
25, 2035
|
|
M-1
|
Variable(2)
|
$
|
323,940.00
|
July
25, 2035
|
|
M-2
|
Variable(2)
|
$
|
97,400.00
|
July
25, 2035
|
|
M-3
|
Variable(2)
|
$
|
179,970.00
|
July
25, 2035
|
|
M-4
|
Variable(2)
|
$
|
82,570.00
|
July
25, 2035
|
|
M-5
|
Variable(2)
|
$
|
76,220.00
|
July
25, 2035
|
|
M-6
|
Variable(2)
|
$
|
69,870.00
|
July
25, 2035
|
|
M-7
|
Variable(2)
|
$
|
122,800.00
|
July
25, 2035
|
|
ZZ
|
Variable(2)
|
$
|
4,564,876.48
|
July
25, 2035
|
|
SWAP-IO
|
Variable(2)
|
N/A(3)
|
July
25, 2035
|
|
___________________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC II Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
|
|
(3)
|
REMIC
II Regular Interest SWAP-IO will not have an Uncertificated Balance,
but
will accrue interest on its Uncertificated Notional Amount, as defined
herein.
|
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III.”
The Class R-3 Interest will evidence the sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Pass-Through Rate, the initial aggregate
Certificate Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for the
indicated Classes of Certificates. The Trust Fund will also issue the Class
X-1
Certificates and the Class P Certificates, which will not be issued by any
REMIC
created hereunder.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate Certificate Balance
|
Latest
Possible Maturity Date (1)
|
|
|
Class
A-1
|
Variable(2)
|
$
|
295,150,000
|
July
25, 2035
|
|
Class
M-1
|
Variable(2)
|
$
|
32,394,000
|
July
25, 2035
|
|
Class
M-2
|
Variable(2)
|
$
|
9,740,000
|
July
25, 2035
|
|
Class
M-3
|
Variable(2)
|
$
|
17,997,000
|
July
25, 2035
|
|
Class
M-4
|
Variable(2)
|
$
|
8,257,000
|
July
25, 2035
|
|
Class
M-5
|
Variable(2)
|
$
|
7,622,000
|
July
25, 2035
|
|
Class
M-6
|
Variable(2)
|
$
|
6,987,000
|
July
25, 2035
|
|
Class
M-7
|
Variable(2)
|
$
|
12,280,000
|
July
25, 2035
|
|
Class
X
|
Variable(2)
|
$
|
33,030,323.76
(3)
|
July
25, 2035
|
_________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
|
(3)
|
The
Class X Certificates will accrue interest at their variable Pass-Through
Rate on the Notional Amount of the Class X Certificates outstanding
from
time to time which shall equal the Uncertificated Balance of the
REMIC II
Regular Interests. The Class X Certificates will not accrue interest
on
their Certificate Balance.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to $423,457,323.76.
The
minimum denomination for each Class of Offered Certificates and Class M-6
Certificates will be $25,000 initial Certificate Balance with integral multiples
of $1 in excess thereof. The minimum denomination for (a) the Class R
Certificates will be a 100% Percentage Interest in such Class and (b) the Class
P Certificates and Class X Certificates will be a 1% Percentage Interest in
each
such Class. The Class X-1 Certificates will be issued as a single Certificate
and will not have a Class Certificate Balance.
It
is
expected that each Class of Certificates will receive its final distribution
of
principal and interest on or prior to the Final Scheduled Distribution
Date.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical Certificates.
|
|
Class
M Certificates
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class
M-7
Certificates.
|
|
Non-Offered
Certificates
|
Class
M-6, Class X, Class X-1, Class P and Class R
Certificates.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Non-Offered
Certificates.
|
|
Physical
Certificates
|
Class
X, Class X-1, Class P and Class R Certificates.
|
|
Rating
Agencies
|
Standard
& Poor’s and Moody’s.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Class P, Class X-1 and Class
R
Certificates.
|
|
Residual
Certificates
|
Class
R Certificates.
|
|
Subordinated
Certificates
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class
M-7
Certificates.
|
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those mortgage servicing
practices set forth in the first paragraph of Section 3.01(a) of this
Agreement.
Account:
Any of the Collection Account, the Distribution Account, the Policy Payments
Account, the Supplemental Interest Trust Account or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued
Certificate Interest Distribution Amount: With respect to any Distribution
Date
for each Class of Offered Certificates and the Class M-6 Certificates, the
amount of interest accrued during the related
Interest Accrual Period at
the
applicable Pass-Through Rate on the related Class Certificate Balance
immediately prior to such Distribution Date, as reduced by such Class’s share of
Net Prepayment Interest Shortfalls not covered by Total Monthly Express Spread
and Relief Act Interest Shortfalls for the related Due Period allocated to
such
Class pursuant to Section 4.02.
Additional
Form 10-D Disclosure: As defined in Section 8.12(a)(i).
Additional
Form 10-K Disclosure: As defined in Section 8.12(a)(iii).
Adjusted
Net Mortgage Interest Rate: As to each Mortgage Loan and at any time, the per
annum rate equal to the Mortgage Interest Rate less the related Expense Fee
Rate.
Advance:
Any P&I Advance or Servicing Advance.
Advance
Facility: As defined in Section 11.07.
Advancing
Person: The Person to whom a Servicer’s rights under this Agreement to be
reimbursed for any P&I Advances or Servicing Advances have been assigned
pursuant to Section 11.07.
Affiliate:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Agreement:
This Pooling and Servicing Agreement and all amendments or supplements
hereto.
Annual
Statement of Compliance: As defined in Section 3.22.
Applied
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any,
by which the aggregate Class Certificate Balance of the Offered Certificates
and
the Class M-6 Certificates, after distributions of principal and after
application of any amounts received from the Supplemental Interest Trust on
such
Distribution Date exceeds the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date.
Appraised
Value: (i) In the case of a purchase, the least of the sale price of the related
Mortgaged Property, its appraised value or its review appraisal value (as
determined pursuant to the related Underwriting Guidelines) at the time of
sale,
or (ii) in the case of a refinancing or modification of a Mortgage Loan, the
appraised value of the related Mortgaged Property at the time of the refinancing
or modification.
Assessment
of Compliance: As defined in Section 3.23.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form (other than the assignee’s name and recording
information not yet returned from the recording office), reflecting the sale
of
the Mortgage to the Trust.
Attestation
Report: As defined in Section 3.23.
Available
Funds: With respect to any Distribution Date and the Mortgage Loans to the
extent received by the Trustee (x) the sum of (i) all scheduled
installments of interest (net of the related Expense Fees) and principal due
on
the Due Date on such Mortgage Loans in the related Due Period and received
on or
prior to the related Determination Date, together with any P&I Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds received during the related Prepayment Period (in each
case, net of unreimbursed expenses incurred in connection with a liquidation
or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received during the related Prepayment Period
together with all Compensating Interest paid by the Servicer in connection
therewith (excluding Prepayment Premiums); (iv) all amounts received with
respect to such Distribution Date as the Substitution Adjustment Amount or
Repurchase Price in respect of a Deleted Mortgage Loan or a Mortgage Loan
repurchased by the related Responsible Party or the Purchaser during the related
Prepayment Period; and (v) the proceeds received with respect to the termination
of the Trust Fund pursuant to clause (a) of Section 9.01, reduced by
(y) all amounts in reimbursement for P&I Advances and Servicing
Advances previously made with respect to the Mortgage Loans, and other amounts
as to which the Servicer, the Depositor or the Trustee are entitled to be paid
or reimbursed pursuant to this Agreement.
Avoided
Payment: With respect to the Class A Certificates, any payment of principal
or
interest previously distributed to a Holder of a Class A Certificate by or
on
behalf of the Trust that is voided as a result of any Insolvency Proceeding
and
which is returned by a Holder of the Class A Certificates as required by a
final, nonappealable order of a court of competent jurisdiction.
Basic
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the aggregate Principal Remittance Amount for such Distribution Date
over (ii) the Excess Overcollateralized Amount, if any, for such
Distribution Date.
Basis
Risk Carry Forward Amount: With respect to the Certificates, as of any
Distribution Date, the sum of (A) if on such Distribution Date the Pass-Through
Rate for any Class of Offered Certificates and the Class M-6 Certificates is
based upon the WAC Cap, the excess of (i) the amount of interest such Class
of Offered Certificates and the Class M-6 Certificates would otherwise be
entitled to receive on such Distribution Date had the Pass-Through Rate not
been
subject to the WAC Cap, over (ii) the amount of interest payable on such
Class of Offered Certificates and the Class M-6 Certificates at the WAC Cap,
and
(B) the Basis Risk Carry Forward Amount for such Class of Offered Certificates
and the Class M-6 Certificates for all previous Distribution Dates not
previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Offered Certificates and the
Class M-6 Certificates for such Distribution Date (without giving effect to
the
WAC Cap).
Basis
Risk Payment: For any Distribution Date, an amount equal to the lesser of
(i) the aggregate Basis Risk Carry Forward Amounts for such Distribution
Date and (ii) the Class X Distributable Amount (prior to any reduction
for Basis Risk Payments).
Book-Entry
Certificates: As specified in the Preliminary Statement.
Business
Day: Any day other than (i) Saturday or Sunday, or (ii) a day on which
the New York Stock Exchange is closed or banking or savings and loan
institutions, in (a) the States of New York, Ohio, California and Delaware,
(b) the State in which the Servicer’s servicing operations are located, or
(c) the State in which the Trustee’s operations are located, are authorized
or obligated by law or executive order to be closed.
Certificate:
Any of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class
M-6, Class M-7, Class P, Class X, Class X-1 and Class R
Certificates.
Certificate
Balance: With respect to any Class of Certificates, other than the Physical
Certificates, at any date, the maximum dollar amount of principal to which
the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, and reduced
by
the amount of any related Applied Realized Loss Amounts previously allocated
to
such Class of Subordinated Certificates; provided, however, that immediately
following the Distribution Date on which a Subsequent Recovery is distributed,
the Class Certificate Balances of any Class or Classes of Certificates that
have
been previously reduced by related Applied Realized Loss Amounts will be
increased, in order of seniority, by the amount of the Subsequent Recovery
distributed on such Distribution Date (up to the amount of related Applied
Realized Loss Amounts allocated to such Class or Classes). The Physical
Certificates (other than the Class X Certificates) have no Certificate Balance.
With respect to each Class X Certificate as of any date of determination, an
amount equal to the Percentage Interest evidenced by such Certificate times
the
excess, if any, of (A) the then aggregate Uncertificated Balances of the REMIC
II Regular Interests (other than REMIC II Regular Interest SWAP-IO) over (B)
the
then aggregate Class Certificate Balance of the Class A Certificates and Class
M
Certificates then outstanding.
Certificate
Insurer: XL Capital Assurance Inc.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate.
Certificate
Register: The register maintained pursuant to Section 5.02.
Certificateholder
or Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision hereof that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the
taking of any action hereunder. The Trustee is entitled to rely conclusively
on
a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of
the
Depositor.
Certification:
As defined in Section 8.12(b).
Charged
Off Loan: With respect to any Distribution Date, a defaulted Mortgage Loan
that
is 180 days delinquent and that has not yet been liquidated, giving rise to
a
Realized Loss.
Class:
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
Class
Certificate Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates
of
such Class as of such date.
Class A
Certificates: All Certificates bearing the class designation of “Class A
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class A
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the aggregate Class Certificate Balance of
the Class A Certificates immediately prior to such Distribution Date, over
(y) the lesser of (A) the product of (i) 39.40% and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date, and (B) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date over the Overcollateralization
Floor.
Class M
Certificates: The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6 and Class M-7 Certificates.
Class
IO
Distribution Amount: As defined in Section 4.08 hereof. For purposes of clarity,
the Class IO Distribution Amount for any Distribution Date shall equal the
amount payable to the Supplemental Interest Trust 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 4.08 hereof.
Class
IO
Interest: An uncertificated interest in the Trust Fund held by the Supplemental
Interest Trust Trustee, evidencing a REMIC Regular Interest in REMIC III for
purposes of the REMIC Provisions.
Class M-1
Certificates: All Certificates bearing the class designation of “Class M-1
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-1
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date) and (B) the Class Certificate Balance of the Class
M-1 Certificates immediately prior to that Distribution Date, over (y) the
lesser of (A) the product of (i) 54.70% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date over the Overcollateralization
Floor.
Class M-2
Certificates: All Certificates bearing the class designation of “Class M-2
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-2
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), and (C) the
Class Certificate Balance of the Class M-2 Certificates immediately prior
to that Distribution Date, over (y) the lesser of (A) the product of
(i) 59.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for that
Distribution Date over the Overcollateralization Floor.
Class M-3
Certificates: All Certificates bearing the class designation of “Class M-3
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-3
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date) and (D) the Class Certificate Balance of the Class
M-3 Certificates immediately prior to that Distribution Date, over (y) the
lesser of (A) the product of (i) 67.80% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans for that Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date over the Overcollateralization
Floor.
Class M-4
Certificates: All Certificates bearing the class designation of “Class M-4
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-4
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on that Distribution Date), and (E) the
Class Certificate Balance of the Class M-4 Certificates immediately prior
to that Distribution Date, over (y) the lesser of (A) the product of
(i) 71.70% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for that
Distribution Date over the Overcollateralization Floor.
Class M-5
Certificates: All Certificates bearing the class designation of “Class M-5
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-5
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on that Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on that Distribution Date), and
(F) the Class Certificate Balance of the Class M-5 Certificates
immediately prior to that Distribution Date, over (y) the lesser of
(A) the product of (i) 75.30% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans for that Distribution Date, and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date over the Overcollateralization
Floor.
Class M-6
Certificates: All Certificates bearing the class designation of “Class M-6
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-6
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on that Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on that Distribution Date), (F)
the
Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on that
Distribution Date), and (G) the Class Certificate Balance of the Class
M-6 Certificates immediately prior to that Distribution Date, over (y) the
lesser of (A) the product of (i) 78.60% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans for that Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date over the Overcollateralization
Floor.
Class M-7
Certificates: All Certificates bearing the class designation of “Class M-7
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
right to receive the related Basis Risk Carry Forward Amounts and (iii) the
obligation to pay any Class IO Distribution Amount.
Class
M-7
Overcollateralization Factor: With respect to any Distribution Date, the
percentage equivalent of a fraction, (x) the numerator of which is the
cumulative amount of excess interest used to reduce the Class Certificate
Balance of the Class M-7 Certificates on all prior Distribution Dates, times,
with respect to any Distribution Date on or after the Stepdown Date, two (2),
and (y) the denominator of which is the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date.
Class
M-7
Principal Distribution Amount: With respect to any Distribution Date, an amount
equal to the excess of (x) the sum of (A) the aggregate
Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on that
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on that Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on that Distribution Date), (F)
the
Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on that
Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on that Distribution Date), and (H) the
Class Certificate Balance of the Class M-7 Certificates immediately prior
to that Distribution Date, over (y) the lesser of (A) the product of
(i) 84.40% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans for that Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for that
Distribution Date over the Overcollateralization Floor.
Class P
Certificates: All Certificates bearing the class designation of
“Class P.”
Class R
Certificates: All Certificates bearing the designation of “Class R” and
evidencing ownership of the Class R-1 Interest, the Class R-2 Interest and
the
Class R-3 Interest.
Class
R-1
Interest: The uncertificated residual interest in REMIC I.
Class
R-2
Interest: The uncertificated residual interest in REMIC II.
Class
R-3
Interest: The uncertificated residual interest in REMIC III.
Class
X
Certificates: All Certificates bearing the class designation of “Class X
Certificates” and evidencing (i) a REMIC Regular Interest in REMIC III, (ii) the
obligation to pay Basis Risk Carry Forward Amounts and (iii) the obligation
to
pay any Class IO Distribution Amount.
Class X
Distributable Amount: On any Distribution Date, (i) as a distribution in
respect of interest, the amount of interest that has accrued on the Class X
Interest and not applied as an Extra Principal Distribution Amount on such
Distribution Date, plus any such accrued interest remaining undistributed from
prior Distribution Dates, plus, without duplication, (ii) as a distribution
in respect of principal, any portion of the principal balance of the
Class X Interest which is distributable as a Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk
Payment.
Class X-1
Certificates: All Certificates bearing the class designation of
“Class X-1.”
Closing
Date: April 26, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Accounts: As defined in Section 3.10(a).
Combined
Loan-to-Value Ratio or CLTV: As of any date and as to any Mortgage Loan, the
ratio, expressed as a percentage, of the (a) sum of (i) the outstanding
principal balance of the Mortgage Loan and (ii) the outstanding principal
balance as of such date of any mortgage loan or mortgage loans that are senior
or equal in priority to the Mortgage Loan and which are secured by the same
Mortgaged Property to (b) the Appraised Value.
Commission:
The United States Securities and Exchange Commission.
Compensating
Interest: For any Distribution Date, the lesser of (a) the Prepayment
Interest Shortfall, if any, for such Distribution Date, with respect to
voluntary Principal Prepayments in full occurring during the related Prepayment
Period, and (b) one-half of the Servicing Fee payable to the Servicer for
such Distribution Date.
Condemnation
Proceeds: All awards, compensation and/or settlements in respect of a Mortgaged
Property on the related Mortgage Loans, whether permanent or temporary, partial
or entire, by exercise of the power of eminent domain or condemnation, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents remaining after, or not otherwise
required to be applied to, the satisfaction of any related First Lien Mortgage
Loan.
Corporate
Trust Office: The designated office of the Trustee in the State of California
at
which at any particular time its corporate trust business with respect to this
Agreement is administered, which office at the date of the execution of this
Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attn: Trust Administration-FF07S1, facsimile no. (000) 000-0000
and
which is the address to which notices to and correspondence with the Trustee
should be directed.
Corresponding
Certificate: With respect to each REMIC Regular Interest listed below, as
follows:
|
REMIC
Regular Interest
|
Class
|
|
REMIC
III Regular Interest A
|
A
|
|
REMIC
III Regular Interest M1
|
M-1
|
|
REMIC
III Regular Interest M2
|
M-2
|
|
REMIC
III Regular Interest M3
|
M-3
|
|
REMIC
III Regular Interest M4
|
M-4
|
|
REMIC
III Regular Interest M5
|
M-5
|
|
REMIC
III Regular Interest M6
|
M-6
|
|
REMIC
III Regular Interest M7
|
M-7
|
Custodial
File: With respect to each Mortgage Loan, any Mortgage Loan Document which
is
delivered to the Trustee, or which at any time comes into the possession of
the
Trustee.
Cut-off
Date: April 1, 2007.
Cut-off
Date Pool Principal Balance: The aggregate Stated Principal Balance of all
Mortgage Loans as of the Cut-off Date.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated Principal Balance
thereof as of the close of business on the Cut-off Date (after giving effect
to
payments of principal due on that date, whether or not received).
Data
Tape
Information: The information provided by the related Responsible Party or the
Servicer as of the Cut-off Date to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) the applicable Responsible
Party’s Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based
on
the original amortization schedule and, if different, the maturity expressed
in
the same manner but based on the actual amortization schedule; (7) the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently
in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which
a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan;
(14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on
or
before the Cut-off Date; (15) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (16) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (17) the loan credit classification (as
described in the related Underwriting Guidelines); (18) whether such Mortgage
Loan provides for a Prepayment Premium; (19) the Prepayment Premium period
of
such Mortgage Loan, if applicable; (20) a description of the Prepayment Premium,
if applicable; (21) the Mortgage Interest Rate as of origination; (22) the
credit risk score (FICO score) at origination; (23) the date of origination;
(24) a code indicating whether the Mortgage Loan has been modified; (25) the
payment history; (26) the Due Date for the first Scheduled Payment; (27) the
original Scheduled Payment due; (28) with respect to the related Mortgagor,
the
debt-to-income ratio; (29) the Appraised Value of the Mortgaged Property; (30)
the sales price of the Mortgaged Property if the Mortgage Loan was originated
in
connection with the purchase of the Mortgaged Property; (31) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (32)
a
code indicating whether the Mortgage Loan is a “Section 32 Mortgage Loan”; (33)
a code indicating whether the Mortgage Loan is assumable; (34) the Responsible
Party which sold the Mortgage Loan, and (35) a code indicating if a Mortgage
Loan is or has had a 30 Day Delinquency. With respect to the Mortgage Loans
in
the aggregate: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction by a court
of
competent jurisdiction in a proceeding under the United States Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan, except for such a reduction
resulting from a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Defaulted
Swap Termination Payment: Any Swap Termination Payment required to be paid
by
the Trust to the Swap Provider pursuant to the Interest Rate Swap Agreement
as a
result of an Event of Default (as defined in the Interest Rate Swap Agreement)
with respect to which the Swap Provider is the defaulting party or a Termination
Event (as defined in the Interest Rate Swap Agreement) (other than Illegality
or
a Tax Event that is not a Tax Event Upon Merger (each as defined in 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).
Deficiency
Amount: With respect to the Class A Certificates, as of any Distribution Date,
the sum of the following amounts, in each case after giving effect to
distributions made on the Class A Certificates on such Distribution Date from
sources other than the Policy:
(i) the
excess, if any, of (A) the Accrued Certificate Interest Distribution Amount
on
the Class A Certificates (calculated without regard to any step-up of the
related Pass-Through Margin following the first possible Optional Termination
Date) over (B) the Interest Remittance Amount allocated to pay such Accrued
Certificate Interest Distribution Amount pursuant to this Agreement; and
(ii) the
Class
Certificate Balance of the Class A Certificates on the Final Scheduled
Distribution Date.
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 principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the United States Bankruptcy
Code.
Definitive
Certificates: Any Certificate evidenced by a Physical Certificate and any
Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Deleted
Mortgage Loan: Any Mortgage Loan permitted to be removed from the Trust Fund
under the circumstances set forth in the Assignment and Recognition
Agreement.
Delinquent:
A Mortgage Loan will be considered “Delinquent” based on the so-called “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 scheduled payment due on a Due Date if such scheduled payment
is
not made by the close of business on the Mortgage Loan’s next succeeding Due
Date, and a Mortgage Loan would be more than 30-days Delinquent with respect
to
such scheduled payment if such scheduled payment were not made by the close
of
business on the Mortgage Loan’s second succeeding Due Date.
Denomination:
With respect to each Certificate, the amount set forth on the face thereof
as
the “Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof.
Depositor:
GS Mortgage Securities Corp., a Delaware corporation, and its successors in
interest.
Depository:
The initial Depository shall be The Depository Trust Company, the nominee of
which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State
of New York.
Depository
Institution: Any depository institution or trust company, including the Trustee,
that (a) is incorporated under the laws of the United States of America or
any State thereof, (b) is subject to supervision and examination by federal
or state banking authorities and (c) has outstanding unsecured commercial
paper or other short-term unsecured debt obligations that are rated P-1 by
Moody’s, F1+ by Fitch and A-1 by Standard & Poor’s, to the extent they are
Rating Agencies hereunder.
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 each Distribution Date, the 15th day of the calendar
month
in which such Distribution Date occurs or, if such day is not a Business Day,
the immediately preceding Business Day.
Distribution
Account: The separate Eligible Account created and maintained by the Trustee
pursuant to Section 3.27(b) in the name of the Trustee for the benefit of
the Holders of the Certificates and the Certificate Insurer and designated
“Deutsche Bank National Trust Company in trust for registered Holders of FFMLT
2007-FFB-SS Mortgage Pass-Through Certificates, Series 2007-FFB-SS and
XLCA, as Certificate Insurer.” Funds in the Distribution Account shall be held
in trust for the Holders of the Certificates and the Certificate Insurer for
the
uses and purposes set forth in this Agreement and may be invested in Permitted
Investments.
Distribution
Date: The 25th day of each calendar month after the initial issuance of the
Certificates or, if such day is not a Business Day, the next succeeding Business
Day, commencing in May 2007.
Document
Certification and Exception Report: The report attached to Exhibit F
hereto.
Due
Date:
The day of the month on which the Scheduled Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period: With respect to any Distribution Date, the period commencing on the
second day of the calendar month preceding the month in which the Distribution
Date occurs and ending on the first day of the calendar month in which the
Distribution Date occurs.
Eligible
Account: Either (i) an account 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 a subsidiary of a holding company, the short-term unsecured
debt
obligations of such holding company) are rated “A-1” by Standard & Poor’s
and “P-1” by Moody’s (and a comparable rating if another Rating Agency is
specified by the Depositor by written notice to the Servicer) at the time any
amounts are held on deposit therein, (ii) a trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity or (iii) any other account
acceptable to the Certificate Insurer and each Rating Agency. Eligible Accounts
may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted
Certificates: The Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class P, Class X, Class X-1 and Class R
Certificates.
Event
of
Default: As defined in Section 7.01.
Excess
Overcollateralized Amount: With respect to any Distribution Date, the excess,
if
any, of (a) the Overcollateralized Amount on such Distribution Date over
(b) the Specified Overcollateralized Amount for such Distribution
Date.
Excess
Reserve Fund Account: The separate, non-interest bearing Eligible Account
created and maintained by the Trustee pursuant to Sections 3.27(a) in the
name of the Trustee for the benefit of the Certificateholders and designated
“Deutsche Bank National Trust Company in trust for registered Holders of FFMLT
2007-FFB-SS, Mortgage Pass-Through Certificates, Series 2007-FFB-SS.” Funds in
the Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Expense
Fee Rate: As to each Mortgage Loan, a per annum rate equal to the Servicing
Fee
Rate.
Expense
Fees: As to each Mortgage Loan, the Servicing Fee.
Extra
Principal Distribution Amount: As of any Distribution Date, the lesser of
(x) the related Total Monthly Excess Spread for such Distribution Date and
(y) the Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx
Mae: The Federal National Mortgage Association and its successors in
interest.
Xxxxxx
Xxx Guides: The Xxxxxx Mae Seller’s Guide and the Xxxxxx Xxx Servicer’s Guide
and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, and its successors in
interest.
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 related
Responsible Party or the Purchaser as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final
Scheduled Distribution Date: The Distribution Date occurring in July
2035.
First
Lien Mortgage Loan: With respect to each Mortgage Loan, any mortgage loan
secured by a first lien Mortgage on the related Mortgaged Property.
Fitch:
Fitch, Inc., and its successors in interest.
Forbearance:
As defined in Section 3.07(a).
Form
8-K
Disclosure Information: As defined in Section 8.12(a)(ii).
Xxxxxxx
Mac: The Federal Home Loan Mortgage Corporation, a corporate instrumentality
of
the United States created and existing under Title III of the Emergency
Home Finance Act of 1970, as amended, and its successors in
interest.
High
Cost
Mortgage Loan:
A
Mortgage Loan that is (a) covered by the Home Ownership and Equity Protection
Act of 1994, (b) identified, classified or characterized as “high cost,”
“threshold,” “covered”, or “predatory” under any other applicable state, federal
or local law (or a similarly identified, classified or characterized loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees) or (c) categorized
as “High Cost” or “Covered” pursuant to the then-current version of Appendix E
of the Standard & Poor’s Glossary.
Home
Loan
Services: Home Loan Services, Inc., a Delaware corporation, and its successors
in interest.
Initial
Certification: The Initial Certification submitted by the Trustee substantially
in the form of Exhibit E.
Insolvency
Proceeding: The commencement after the Closing Date of any bankruptcy,
insolvency, readjustment of debt, reorganization, marshalling of assets and
liabilities or similar proceedings by or against any Person, the commencement,
after the date hereof, of any proceedings by or against any Person for the
winding up or liquidation of its affairs, or the consent, after the date hereof,
to the appointment of a trustee, conservator, receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, reorganization, marshalling of
assets and liabilities or similar proceedings of or relating to any
Person.
Insurance
Agreement: The Insurance and Indemnity Agreement, dated as of April 26, 2007,
among the Certificate Insurer, the Sponsor, the Depositor and the Trustee,
including any amendments and supplements thereto in accordance with the terms
thereof.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Insured
Amounts: With respect to any Distribution Date and the Class A Certificates,
that portion of the Scheduled
Insured Certificate Payments
that
shall become due for payment but shall be unpaid by reason of Nonpayment on
such
Distribution Date (which shall be equal to the amount of any related Deficiency
Amount).
Interest
Accrual Period: With respect to the LIBOR Certificates and any Distribution
Date, the period commencing on the immediately preceding Distribution Date
(or,
for the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. For purposes of computing
interest accruals on each Class of LIBOR Certificates, each Interest Accrual
Period has the actual number of days in such period and each year is assumed
to
have 360 days.
Interest
Rate Swap Agreement: The interest rate swap agreement, dated as of April 26,
2007, and the related confirmation, dated April 26, 2007, between the Swap
Provider and the Supplemental Interest Trust Trustee, on behalf of the
Supplemental Interest Trust or any swap agreement (including any related
schedules) entered into, a copy of which is attached hereto as Exhibit
U.
Interest
Remittance Amount: With respect to any Distribution Date, that portion of
Available Funds attributable to interest relating to the Mortgage Loans, net
of
applicable fees paid to the Servicer and the Premium payable to the Certificate
Insurer for such Distribution Date, and net of any Net Swap Payments and Swap
Termination Payments, other than Defaulted Swap Termination Payments, payable
to
the Swap Provider with respect to such Distribution Date.
Investment
Account: As defined in Section 3.12(a).
Investor:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Late
Collections: With respect to any Mortgage Loan and any Due Period, all amounts
received after the Determination Date immediately following such Due Period,
whether as late payments of Scheduled Payments or as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
LIBOR:
With respect to any Interest Accrual Period for the LIBOR Certificates, the
rate
determined by the Trustee on the related LIBOR Determination Date on the basis
of the London interbank offered rate for one-month United States dollar deposits
as such rate appears the Reuters Screen LIBOR01 Page as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on the Reuters
Screen LIBOR01 Page, the rate for such date will be determined on the basis
of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks
in
the London interbank market. In such event, the Trustee shall request the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two such quotations are provided, the rate for that date
will be the arithmetic mean of the quotations (rounded upwards if necessary
to
the nearest whole multiple of 1/16%). If fewer than two quotations are provided
as requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European
banks.
LIBOR
Determination Date: With respect to any Interest Accrual Period for the LIBOR
Certificates, the second London Business Day preceding the commencement of
such
Interest Accrual Period.
Liquidated
Mortgage Loan: With respect to any Distribution Date, (i) a defaulted Mortgage
Loan (including any REO Property) which was liquidated in the calendar month
preceding the month of such Distribution Date and as to which the Servicer
has
certified (in accordance with this Agreement) that it has made a Final Recovery
Determination and (ii) any Charged Off Loan.
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; (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold, transferred or replaced pursuant to or as contemplated by this Agreement
or (iv) such Mortgage Loan becomes a Charged Off Loan pursuant to Section 3.15.
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 coverage under this Agreement by reason of its
being purchased pursuant to this Agreement.
Liquidation
Proceeds: The amounts, including Insurance Proceeds, Condemnation Proceeds
or
those received following the acquisition of REO Property, received in connection
with the liquidation of a defaulted Mortgage Loan, whether through a trustee’s
sale, foreclosure sale or otherwise, including any Subsequent Recoveries in
each
case, which are remaining after, or not otherwise required to be applied to,
the
satisfaction of any related First Lien Mortgage Loan.
London
Business Day: Any day on which dealings in deposits of United States dollars
are
transacted in the London interbank market.
Majority
Class X Certificateholder: The Holder or Holders of a majority of the
Percentage Interests in the Class X Certificates.
Marker
Rate: With respect to the Class X Certificates and any Distribution Date, a
per
annum rate equal to two (2) times the weighted average of the REMIC II
Remittance Rate for each of REMIC II Regular Interest A1, REMIC II Regular
M1,
REMIC II Regular Interest M2, REMIC II Regular M3, REMIC II Regular Interest
M4,
REMIC II Regular Interest M5, REMIC II Regular Interest M6, REMIC II Regular
Interest M7 and REMIC II Regular Interest ZZ, with the rate on each such REMIC
II Regular Interest (other than REMIC II Regular Interest ZZ) subject to a
cap
equal to the related Pass-Through Rate for the Corresponding Certificate for
the
purpose of this calculation for such Distribution Date and with the rate on
REMIC II Regular Interest ZZ subject to a cap of zero for the purpose of this
calculation; provided however, the cap for each such REMIC II Regular Interest
shall be multiplied by a fraction the numerator of which is the actual number
of
days in the related Interest Accrual Period and the denominator of which is
30.
Maximum
ZZ Uncertificated Interest Deferral Amount: With respect to any Distribution
Date, the excess of (i) accrued interest at the REMIC II Remittance Rate
applicable to REMIC II Regular Interest ZZ for such Distribution Date on a
balance equal to the Uncertificated Balance of REMIC II Regular Interest ZZ
minus the REMIC II Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Interest on REMIC II Regular
Interest A1, REMIC II Regular M1, REMIC II Regular Interest M2, REMIC II Regular
M3, REMIC II Regular Interest M4, REMIC II Regular Interest M5, REMIC II Regular
Interest M6 and REMIC II Regular Interest M7 and with the rate on each such
REMIC II Regular Interest subject to a cap equal to the related Pass-Through
Rate for the corresponding Certificate for the purpose of this calculation
for
such Distribution Date; provided however, the cap for each such REMIC II Regular
Interest shall be multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the denominator of
which is 30.
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the Responsible Party
has
designated or will designate MERS as, and has taken or will take such action
as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Responsible Party, in accordance with MERS Procedure Manual and (b) the
Responsible Party has designated or will designate the Trust as the Investor
on
the MERS® System.
MERS
Procedure Manual: The MERS Procedures Manual, as it may be amended, supplemented
or otherwise modified from time to time.
MERS®
System: MERS mortgage electronic registry system, as more particularly described
in the MERS Procedures Manual.
Monthly
Statement: The statement made available to the related Certificateholders
pursuant to Section 4.04.
Moody’s:
Xxxxx’x Investors Service, Inc. and its successor in interest. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody’s shall be Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody’s may
hereafter furnish to the Depositor, the Servicer, the Trustee and the
Certificate Insurer.
Mortgage:
The mortgage, deed of trust or other instrument identified on the Mortgage
Loan
Schedule as securing a Mortgage Note.
Mortgage
File: The items pertaining to a particular Mortgage Loan contained in either
the
Servicing File or Custodial File.
Mortgage
Interest Rate: The annual rate of interest borne on a Mortgage Note with respect
to each Mortgage Loan.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this Agreement, each
Mortgage Loan originally sold and subject to this Agreement being identified
on
the Mortgage Loan Schedule, which Mortgage Loan includes, without limitation,
the Mortgage File, the Custodial File, the Servicing File, the Scheduled
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds, Prepayment Premiums and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding replaced or repurchased Mortgage
Loans.
Mortgage
Loan Documents: The mortgage loan documents pertaining to each Mortgage
Loan.
Mortgage
Loan Schedule: A schedule of Mortgage Loans annexed hereto as Schedule I, such
schedule setting forth the following information with respect to each Mortgage
Loan as of the Cut-off Date: (1) the applicable Responsible Party Mortgage
Loan identifying number; (2) the Mortgagor’s name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e., a single family residence, a 2-4 family residence,
a
unit in a condominium project or a unit in a planned unit development or a
manufactured housing unit); (6) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (7) the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently
in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which
a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan;
(14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on
or
before the Cut-off Date; (15) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (16) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (17) the loan credit classification (as
described in the Underwriting Guidelines); (18) whether such Mortgage Loan
provides for a Prepayment Premium; (19) the Prepayment Premium period of such
Mortgage Loan, if applicable; (20) a description of the Prepayment Premium,
if
applicable; (21) the Mortgage Interest Rate as of origination; (22) the credit
risk score (FICO score) at origination; (23) the date of origination; (24)
a
code indicating whether the Mortgage Loan has been modified; (25) the payment
history; (26) the Due Date for the first Scheduled Payment; (27) the original
Scheduled Payment due; (28) with respect to the related Mortgagor, the
debt-to-income ratio; (29) the Appraised Value of the Mortgaged Property; (30)
the sales price of the Mortgaged Property if the Mortgage Loan was originated
in
connection with the purchase of the Mortgaged Property; (31) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (32)
a
code indicating whether the Mortgage Loan is a “Section 32 Mortgage Loan”; (33)
a code indicating whether the Mortgage Loan is assumable; (34) a code indicating
if a Mortgage Loan is or has had a 30 Day Delinquency; (35) with respect to
each
MERS Designated Mortgage Loan, the MERS identification number and (36) a code
indicating the custodian of such Mortgage Loan. With respect to the Mortgage
Loans in the aggregate: (1) the number of Mortgage Loans; (2) the
current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; and
(4) the weighted average maturity of the Mortgage Loans.
Mortgage
Note: The note or other evidence of the indebtedness of a Mortgagor under a
Mortgage Loan, including all riders thereto.
Mortgaged
Property: The real property (or leasehold estate, if applicable) identified
on
the related Mortgage Loan Schedule as securing repayment of the debt evidenced
by a Mortgage Note.
Mortgagor:
The obligor(s) on a Mortgage Note.
National
City Bank: National City Bank, a national bank, and its successors in
interest.
National
City Bank Agreements: Collectively, the National City Bank Purchase Agreement
and the National City Bank Assignment Agreement, copies of which are attached
hereto as Exhibit Q.
National
City Bank Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of April 26, 2007, by and among National City Bank, the
Sponsor and the Depositor.
National
City Bank Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of December 18, 2006, between National City Bank and the
Sponsor, solely insofar as the National City Bank relates to the National City
Bank Mortgage Loans.
Net
Monthly Excess Cash Flow: For any Distribution Date the amount remaining for
distribution pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net
Prepayment Interest Shortfall: For any Distribution Date and the Mortgage Loans,
the amount by which the sum of the Prepayment Interest Shortfalls with respect
to the Mortgage Loans exceeds the sum of the Compensating Interest payments
made
with respect to such Distribution Date.
Net
Swap
Payment: With respect to any Distribution Date, any net payment (other than
a
Swap Termination Payment) made by the Trust to the Swap Provider on the related
Fixed Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
Net
Swap
Receipt: With respect to any Distribution Date, any net payment (other than
a
Swap Termination Payment) made by the Swap Provider to the Trust on the related
Floating Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
90+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, three
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Non-Offered
Certificates: As specified in the Preliminary Statement.
Nonpayment:
With respect to any Distribution Date, the failure of the Trustee to receive
in
full, in accordance with the terms of this Agreement, funds legally available
to
pay all or a portion of the Scheduled Insured Certificate Payments that are
due
for payment on the Class A Certificates with respect to such Distribution
Date.
Nonrecoverable
P&I Advance: Any P&I Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer will not or, in the case of a proposed P&I Advance,
would not be ultimately recoverable from related late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds on such Mortgage Loan
or
REO Property as provided herein.
Nonrecoverable
Servicing Advance: Any Servicing Advances previously made or proposed to be
made
in respect of a Mortgage Loan or REO Property, which, in the good faith business
judgment of the Servicer will not or, in the case of a proposed Servicing
Advance, would not, be ultimately recoverable from related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice
of
Final Distribution: The notice to be provided pursuant to Sections 9.02 and
9.03 to the effect that final distribution on any of the related Certificates
shall be made only upon presentation and surrender thereof.
Notional
Amount: With respect to the Class X Certificates and any Distribution Date,
the
aggregate Uncertificated Balances of the REMIC II Regular Interests (other
than
REMIC II Regular Interest SWAP-IO) for such Distribution Date. As of the Closing
Date, the Notional Amount of the Class X Certificates is equal to
$33,030,323.76.
Offered
Certificates: As specified in the Preliminary Statement.
Officer’s
Certificate: A certificate signed by an officer of the Servicer with
responsibility for the servicing of the related Mortgage Loans required to
be
serviced by the Servicer and listed on a list delivered to the Trustee pursuant
to this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be in-house counsel for the
Servicer or a Subservicer, reasonably acceptable to the Trustee and the
Certificate Insurer; provided, that any Opinion of Counsel relating to
(a) qualification of any Trust REMIC as a REMIC or (b) compliance with
the REMIC Provisions, must (unless otherwise stated in such Opinion of Counsel)
be an opinion of counsel who (i) is in fact independent of the Servicer of
the Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Servicer of the Mortgage Loans or in an affiliate
of
the Servicer and (iii) is not connected with the Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar
functions.
Optional
Termination Date: The date on which the related Terminating Entity, pursuant
to
Section 9.01, shall cause the Optional Termination Date to occur.
OTS:
Office of Thrift Supervision, and any successor thereto.
Outstanding:
With respect to the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated Principal
Balance greater than zero which was not the subject of a Principal Prepayment
in
Full prior to such Due Date and which did not become a Liquidated Mortgage
Loan
prior to such Due Date.
Overcollateralized
Amount: As of any Distribution Date, the excess, if any, of (a) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over (b) the aggregate of the Class Certificate Balances of the
Certificates as of such Distribution Date (after giving effect to the payment
of
the Principal Remittance Amount on such Certificates on such Distribution
Date).
Overcollateralization
Deficiency: With respect to any Distribution Date, the excess, if any, of
(a) the Specified Overcollateralized Amount applicable to such Distribution
Date over (b) the Overcollateralized Amount applicable to such Distribution
Date.
Overcollateralization
Floor: With respect to any Distribution Date, 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date. Notwithstanding
the foregoing, on and after any Distribution Date following the reduction of
the
aggregate Class Certificate Balance of the Offered Certificates and Class M-6
Certificates to zero, the Overcollateralization Floor shall be
zero.
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an amount equal to
the
lesser of (a) the Excess Overcollateralized Amount and (b) the Net
Monthly Excess Cash Flow.
Ownership
Interest: As to any Residual Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and
any other interest therein, whether direct or indirect, legal or
beneficial.
P&I
Advance: As to any Mortgage Loan or REO Property, any advance made by the
Servicer in respect of any Servicer Remittance Date representing the aggregate
of all payments of principal and interest, net of the Servicing Fee that was
due
during the related Due Period on the related Mortgage Loans and that were
delinquent on the related Servicer Remittance Date, plus certain amounts
representing assumed payments not covered by any current net income on the
Mortgaged Properties acquired by foreclosure or deed in lieu of foreclosure
as
determined pursuant to Section 4.01; provided, however, that with respect
to (i) any Mortgage Loan that is 180 days delinquent or more (whether or not
the
Mortgage Loan has been converted to an REO Property) and becomes a Charged
Off
Loan, (ii) shortfalls due to bankruptcy proceedings or the application of the
Relief Act or similar laws and (iii) the principal portion of any amount due
on
a Balloon Loan, there will be no obligation to make P&I Advances and,
provided further, however, that with respect to any Mortgage Loan that has
been
converted to an REO Property which is less than 180 days delinquent, the
obligation to make P&I Advances shall be calculated after taking into
account rental income.
Pass-Through
Margin: With respect to the Class A Certificates, a rate per annum equal to
the
lesser of (i) (A) on or prior to the first possible Optional Termination Date,
0.220% or (B) after the first possible Optional Termination Date, 0.440%, and
(ii) the WAC Cap.
With
respect to the Class M-1 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 0.650%
or
(B) after the first possible Optional Termination Date, 0.975%, and (ii) the
WAC
Cap.
With
respect to the Class M-2 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 0.850%
or
(B) after the first possible Optional Termination Date, 1.275%, and (ii) the
WAC
Cap.
With
respect to the Class M-3 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 2.000%
or
(B) after the first possible Optional Termination Date, 3.000%, and (ii) the
WAC
Cap.
With
respect to the Class M-4 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 2.500%
or
(B) after the first possible Optional Termination Date, 3.750%, and (ii) the
WAC
Cap.
With
respect to the Class M-5 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 3.000%
or
(B) after the first possible Optional Termination Date, 4.500%, and (ii) the
WAC
Cap.
With
respect to the Class M-6 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 3.000%
or
(B) after the first possible Optional Termination Date, 4.500%, and (ii) the
WAC
Cap.
With
respect to the Class M-7 Certificates, a rate per annum equal to the lesser
of
(i) (A) on or prior to the first possible Optional Termination Date, 3.000%
or
(B) after the first possible Optional Termination Date, 4.500%, and (ii) the
WAC
Cap.
With
respect to the Class X Certificates and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amounts calculated pursuant to clauses (1) through (10) below, and
the denominator of which is the aggregate Uncertificated Balances of REMIC
II
Regular Interest AA, REMIC II Regular Interest A1, REMIC II Regular Interest
M1,
REMIC II Regular Interest M2, REMIC II Regular Interest M3, REMIC II Regular
Interest M4, REMIC II Regular Interest M5, REMIC II Regular Interest M6, REMIC
II Regular Interest M7 and REMIC II Regular Interest ZZ. For purposes of
calculating the Pass-Through Rate for the Class X Certificates, the numerator
is
equal to the sum of the following components:
(1) the
REMIC
II Remittance Rate for REMIC II Regular Interest II-AA minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest II-AA;
(2) the
REMIC
II Remittance Rate for REMIC II Regular Interest A1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A;
(3) the
REMIC
II Remittance Rate for REMIC II Regular Interest M1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M1;
(4) the
REMIC
II Remittance Rate for REMIC II Regular Interest M2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M2;
(5) the
REMIC
II Remittance Rate for REMIC II Regular Interest M3 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M3;
(6) the
REMIC
II Remittance Rate for REMIC II Regular Interest M4 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M4;
(7) the
REMIC
II Remittance Rate for REMIC II Regular Interest M5 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M5;
(8) the
REMIC
II Remittance Rate for REMIC II Regular Interest M6 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M6;
(9) the
REMIC
II Remittance Rate for REMIC II Regular Interest M7 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M7;
(10) the
REMIC
II Remittance Rate for REMIC II Regular Interest ZZ minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest ZZ.
Payment
Notice: Any notice delivered under the Policy with respect to a claim
thereunder.
Percentage
Interest: As to any Certificate, the percentage interest evidenced thereby
in
distributions required to be made on the related Class, such percentage interest
being set forth on the face thereof or equal to the percentage obtained by
dividing the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Permitted
Investments: Any one or more of the following obligations or securities acquired
at a purchase price of not greater than par, regardless of whether issued by
the
Servicer, the Trustee or any of their respective Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by any Depository Institution and rated P-1
by
Moody’s, F-1 by Fitch and A-1+ by S&P (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement);
(iii) repurchase
obligations with respect to any security described in clause (i) above
entered into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by each
Rating Agency that rates such securities in its highest short-term unsecured
debt rating available at the time of such investment;
(vi) units
of
money market funds, including money market funds advised by the Depositor or
the
Trustee or an Affiliate thereof, that have been rated “Aaa” by Moody’s, “AAAm”
or “AAAm-G” by Standard & Poor’s and at least “AA” by Fitch (in each case,
to the extent they are designated as Rating Agencies in the Preliminary
Statement); 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 Certificate Insurer and the Rating Agencies as a permitted
investment of funds backing “Aaa” or “AAA” rated securities;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying
such instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than
120% of the yield to maturity at par of the underlying obligations. For
investments in the Distribution Account (except during the Trustee Float
Period), only the obligations or securities (or instruments which invest in
the
obligations or securities) specified in clause (i) above shall constitute
Permitted Investments.
Permitted
Transferee: Any Person other than (i) the United States, any State or
political subdivision thereof, or any agency or instrumentality of any of the
foregoing, (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on
any excess inclusions (as defined in Section 860E(c)(1) of the Code) with
respect to any Residual Certificate, (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an “electing large partnership”
within the meaning of Section 775 of the Code and (vii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that
the
Transfer of an Ownership Interest in a Residual Certificate to such Person
may
cause either Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to
tax and, with the exception of the Xxxxxxx Mac, a majority of its board of
directors is not selected by such government unit.
Person:
Any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates: As
specified in the Preliminary Statement.
Policy:
The financial guaranty insurance policy (No. CA03701A) with respect to the
Class
A Certificates and all endorsements thereto, if any, dated the Closing Date,
issued by the Certificate Insurer for the benefit of the holders of the Class
A
Certificates only.
Policy
Payments Account: As defined in Section 8.14.
Pool
Stated Principal Balance: As to any Distribution Date, the aggregate of the
Stated Principal Balances of the Mortgage Loans for such Distribution Date
that
were Outstanding Mortgage Loans on the Due Date in the related Due
Period.
Premium:
The premium due to the Certificate Insurer calculated based on the product
of
the Premium Percentage and the Class Principal Balance of the Class A
Certificates as of the immediately preceding Distribution Date, based on a
360-day year consisting of twelve 30-day months.
Premium
Percentage: 0.12% per annum.
Prepayment
Interest Shortfall: With respect to any Servicer Remittance Date, the sum of,
for each Mortgage Loan that was, during the portion of the one related
Prepayment Period occurring in the calendar month preceding such Servicer
Remittance Date, the subject of a voluntary Principal Prepayment in Full, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
related Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the
lesser of (i) the number of days commencing on the date on which such Principal
Prepayment was applied and ending on the last day of the related Prepayment
Period and (ii) 30.
Prepayment
Period: With respect to any Distribution Date and each Principal Prepayment
in
Full, the period beginning on the 15th
day of
the month preceding the month in which such Distribution Date occurs and ending
on the 14th
day of
the month in which such Distribution Date occurs. With respect to any
Distribution Date and each partial Principal Prepayment, the calendar month
prior to the month of such Distribution Date.
Prepayment
Premium: Any prepayment premium, penalty or charge collected by the Servicer
with respect to a Mortgage Loan from a Mortgagor in connection with any
voluntary Principal Prepayment pursuant to the terms of the related Mortgage
Note.
Principal
Distribution Amount: For any Distribution Date, the sum of (i) the Basic
Principal Distribution Amount for such Distribution Date and (ii) the Extra
Principal Distribution Amountt for such Distribution Date.
Principal
Prepayment: Any full or partial payment of principal on a Mortgage Loan which
is
received in advance of its scheduled Due Date, excluding any Prepayment Premium
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor of the entire
principal balance of a Mortgage Loan.
Principal
Remittance Amount: With respect to any Distribution Date, the amount equal
to
the sum of the following amounts (without duplication) with respect to the
related Due Period: (i) each scheduled payment of principal on a Mortgage
Loan due during such Due Period and received by the Servicer on or prior to
the
related Determination Date or advanced by the Servicer for the Servicer
Remittance Date, (ii) all Principal Prepayments in Full received during the
related Prepayment Period and all partial Principal Prepayments received during
the calendar month preceding such distribution, (iii) all net Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans
allocable to principal actually collected by the Servicer during the applicable
Prepayment Period preceding such distribution, (iv) the portion of the
Repurchase Price allocable to principal with respect to each Deleted Mortgage
Loan, the repurchase obligation for which arose during the related Prepayment
Period, that was repurchased during the related Prepayment Period preceding
such
distribution, (v) the portion of all Substitution Adjustment Amounts
allocable to principal with respect to the substitutions of Mortgage Loans
that
occur during the calendar month in which such Distribution Date occurs, and
(vi)
the allocable portion of the proceeds received with respect to the termination
of the Trust Fund pursuant to clause (a) of Section 9.01 (to the
extent such proceeds relate to principal).
Privacy
Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended, and all
applicable regulations promulgated thereunder.
Prospectus
Supplement: The Prospectus Supplement, dated April 24, 2007, relating to the
Offered Certificates.
PTCE
95-60: As defined in Section 5.02(b).
PUD:
A
planned unit development.
Purchaser:
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership, and its
successors in interest.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary Statement.
If
such organization or a successor is no longer in existence, “Rating Agency”
shall be such nationally recognized statistical rating organization, or other
comparable Person, as is designated by the Depositor, notice of which
designation shall be given to the Trustee. References herein to a given rating
or rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 10.05(b), the
addresses for notices to each Rating Agency shall be the address specified
therefor in the definition corresponding to the name of such Rating Agency,
or
such other address as either such Rating Agency may hereafter furnish to the
Depositor, the Certificate Insurer and the Servicer.
Realized
Losses: With respect to any date of determination and any Liquidated Mortgage
Loan, the amount, if any, by which (a) the unpaid principal balance of such
Liquidated Mortgage Loan together with accrued and unpaid interest thereon
exceeds (b) the Liquidation Proceeds with respect thereto net of the
expenses incurred by the Servicer in connection with the liquidation of such
Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan. Any Charged Off Loan
will give rise to a Realized Loss (calculated as if clause (b) of the previous
sentence is equal to zero) at the time it is charged off, as described in
Section 3.15 hereof.
Record
Date: With respect to any Distribution Date, the last business day of the
related Interest Accrual Period.
Reference
Bank: As defined in Section 4.05.
Regular
Certificates: Each Class of Certificates other than the Class R, Class P and
Class X-1 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.
Released
Loan: Any Charged Off Loan that is released by the Servicer to the Class X-1
Certificateholder, pursuant to Section 3.15. Any Released Loan will no longer
be
an asset of any REMIC or the Trust Fund.
Relief
Act: Servicemembers Civil Relief Act, as amended.
Relief
Act Interest Shortfall: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest or principal collectible on such
Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC:
A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
I:
As specified in the Preliminary Statement.
REMIC
I
Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC I Regular Interests
are set forth in the Preliminary Statement hereto.
REMIC
I
Remittance Rate: With respect to REMIC I Regular Interest I, a per annum rate
equal to the weighted average of the Adjusted Net Mortgage Interest Rates then
in effect on the beginning of the related Due Period on the Mortgage Loans.
With
respect to each REMIC I Regular Interest ending with the designation “A”, a per
annum rate equal to the weighted average of the Adjusted Net Mortgage Interest
Rates of the Mortgage Loans multiplied by 2, subject to a maximum rate of
10.100%. With respect to each REMIC I 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
Interest Rates of the Mortgage Loans over (ii) 10.100% and (y)
0.00%.
REMIC
II:
As specified in the Preliminary Statement.
REMIC
II
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 REO Properties then outstanding and (ii) the REMIC II
Remittance Rate for REMIC II Regular Interest AA minus the Marker Rate, divided
by (b) 12.
REMIC
II
Overcollateralization Amount: With respect to any date of determination, (i)
the
aggregate Uncertificated Balances of the REMIC II Regular Interests minus (ii)
the aggregate of the Uncertificated Balances of REMIC II Regular Interest A,
REMIC II Regular Interest M1, REMIC II Regular Interest M2, REMIC II Regular
Interest M3, REMIC II Regular Interest M4, REMIC II Regular Interest M5, REMIC
II Regular Interest M6 and REMIC II Regular Xxxxxxxx X0, in each case as of
such
date of determination.
REMIC
II
Principal Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Group I Mortgage Loans and related REO Properties then outstanding and
(ii)
1 minus a fraction, the numerator of which is two times the aggregate of the
Uncertificated Balances of REMIC II Regular Interest A, REMIC II Regular
Interest M1, REMIC II Regular Interest M2, REMIC II Regular Interest M3, REMIC
II Regular Interest M4, REMIC II Regular Interest M5, REMIC II Regular Interest
M6 and REMIC II Regular Interest M7 and the denominator of which is the
aggregate of the Uncertificated Balances of REMIC II Regular Interest A, REMIC
II Regular Interest M1, REMIC II Regular Interest M2, REMIC II Regular Interest
M3, REMIC II Regular Interest M4, REMIC II Regular Interest M5, REMIC II Regular
Interest M6, REMIC II Regular Interest M7 and REMIC II Regular Interest
ZZ.
REMIC
II
Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal (other than REMIC II Regular Interest SWAP-IO),
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC II Regular Interests are set forth
in
the Preliminary Statement hereto.
REMIC
II
Remittance Rate: With respect to REMIC II Regular Interest AA, REMIC II Regular
Interest A, REMIC II Regular Interest M1, REMIC II Regular Interest M2, REMIC
II
Regular Interest M3, REMIC II Regular Interest M4, REMIC II Regular Interest
M5,
REMIC II Regular Interest M6, REMIC II Regular Interest M7 and REMIC II Regular
Interest ZZ, a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC I Regular Interest I, the REMIC I Remittance Rate for such
REMIC I Regular Interest for each such Distribution Date, (x) with respect
to
REMIC I Regular Interests ending with the designation “B”, the weighted average
of the REMIC I Remittance Rates for such REMIC I Regular Interests, weighted
on
the basis of the Uncertificated Balance of such REMIC I Regular Interests for
each such Distribution Date and (y) with respect to REMIC I 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 I Regular
Interest listed below, weighted on the basis of the the Principal Balance of
each such REMIC I Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
2
|
I-2-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
|
the
REMIC I Remittance Rate
|
|
|
3
|
I-3-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
and I-2-A
|
the
REMIC I Remittance Rate
|
|
|
4
|
I-4-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-3-A
|
the
REMIC I Remittance Rate
|
|
|
5
|
I-5-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-4-A
|
the
REMIC I Remittance Rate
|
|
|
6
|
I-6-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-5-A
|
the
REMIC I Remittance Rate
|
|
|
7
|
I-7-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-6-A
|
the
REMIC I Remittance Rate
|
|
|
8
|
I-8-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-7-A
|
the
REMIC I Remittance Rate
|
|
|
9
|
I-9-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-8-A
|
the
REMIC I Remittance Rate
|
|
|
10
|
I-10-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-9-A
|
the
REMIC I Remittance Rate
|
|
|
11
|
I-11-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-10-A
|
the
REMIC I Remittance Rate
|
|
|
12
|
I-12-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-11-A
|
the
REMIC I Remittance Rate
|
|
|
13
|
I-13-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-12-A
|
the
REMIC I Remittance Rate
|
|
|
14
|
I-14-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-13-A
|
the
REMIC I Remittance Rate
|
|
|
15
|
I-15-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-14-A
|
the
REMIC I Remittance Rate
|
|
|
16
|
I-16-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-15-A
|
the
REMIC I Remittance Rate
|
|
|
17
|
I-17-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-16-A
|
the
REMIC I Remittance Rate
|
|
|
18
|
I-18-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-17-A
|
the
REMIC I Remittance Rate
|
|
|
19
|
I-19-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-18-A
|
the
REMIC I Remittance Rate
|
|
|
20
|
I-20-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-19-A
|
the
REMIC I Remittance Rate
|
|
|
21
- 23
|
I-21-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-20-A
|
the
REMIC I Remittance Rate
|
|
|
24
|
I-22-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-21-A
|
the
REMIC I Remittance Rate
|
|
|
25
|
I-23-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-22-A
|
the
REMIC I Remittance Rate
|
|
|
26
|
I-24-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-23-A
|
the
REMIC I Remittance Rate
|
|
|
27
|
I-25-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-24-A
|
the
REMIC I Remittance Rate
|
|
|
28
|
I-26-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-25-A
|
the
REMIC I Remittance Rate
|
|
|
29
|
I-27-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-26-A
|
the
REMIC I Remittance Rate
|
|
|
30
|
I-28-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-27-A
|
the
REMIC I Remittance Rate
|
|
|
31
|
I-29-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-28-A
|
the
REMIC I Remittance Rate
|
|
|
32
|
I-30-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-29-A
|
the
REMIC I Remittance Rate
|
|
|
33
|
I-31-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-30-A
|
the
REMIC I Remittance Rate
|
|
|
34
|
I-32-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-31-A
|
the
REMIC I Remittance Rate
|
|
|
35
|
I-33-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-32-A
|
the
REMIC I Remittance Rate
|
|
|
36
|
I-34-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-33-A
|
the
REMIC I Remittance Rate
|
|
|
37
|
I-35-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-34-A
|
the
REMIC I Remittance Rate
|
|
|
38
|
I-36-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-35-A
|
the
REMIC I Remittance Rate
|
|
|
39
|
I-37-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-36-A
|
the
REMIC I Remittance Rate
|
|
|
40
|
I-38-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-37-A
|
the
REMIC I Remittance Rate
|
|
|
41
|
I-39-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-38-A
|
the
REMIC I Remittance Rate
|
|
|
42
|
I-40-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-39-A
|
the
REMIC I Remittance Rate
|
|
|
43
|
I-41-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-40-A
|
the
REMIC I Remittance Rate
|
|
|
44
|
I-42-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-41-A
|
the
REMIC I Remittance Rate
|
|
|
45
|
I-43-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-42-A
|
the
REMIC I Remittance Rate
|
|
|
46
|
I-44-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-43-A
|
the
REMIC I Remittance Rate
|
|
|
47
|
I-45-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-44-A
|
the
REMIC I Remittance Rate
|
|
|
48
|
I-46-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-45-A
|
the
REMIC I Remittance Rate
|
|
|
49
|
I-47-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-46-A
|
the
REMIC I Remittance Rate
|
|
|
50
|
I-48-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-47-A
|
the
REMIC I Remittance Rate
|
|
|
51
|
I-49-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-48-A
|
the
REMIC I Remittance Rate
|
|
|
52
|
I-50-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-49-A
|
the
REMIC I Remittance Rate
|
|
|
53
|
I-51-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-50-A
|
the
REMIC I Remittance Rate
|
|
|
54
|
I-52-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-51-A
|
the
REMIC I Remittance Rate
|
|
|
55
|
I-53-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-52-A
|
the
REMIC I Remittance Rate
|
|
|
56
|
I-54-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-53-A
|
the
REMIC I Remittance Rate
|
|
|
57
|
I-55-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-54-A
|
the
REMIC I Remittance Rate
|
|
|
58
|
I-56-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-55-A
|
the
REMIC I Remittance Rate
|
|
|
59
|
I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the REMIC
I
Remittance Rate
|
|
I-1-A
through I-56-A
|
the
REMIC I Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-57-A
|
the
REMIC I Remittance Rate
|
With
respect to REMIC II Regular Interest SWAP-IO, the excess of (i) the REMIC I
Remittance Rates for REMIC I Regular Interests ending with the designation
“A”,
over (ii) 2 multiplied by Swap LIBOR.
REMIC
II
Required Overcollateralization Amount: 1.00% of the Overcollateralization
Floor.
REMIC
III: The segregated pool of assets consisting of all of the REMIC II Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC III
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
REMIC
III
Certificate: Any Class A, Class M, Class X or Class R Certificate.
REMIC
III
Certificateholder: The Holder of any REMIC III Certificate.
REMIC
Opinion: As defined in Section 10.03.
REMIC
Provisions: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
REMIC
Regular Certificate: Any Certificate other than a Class R Certificate, Class
P
Certificate or Class X-1 Certificate.
REMIC
Regular Interest: Any REMIC I Regular Interest or REMIC II Regular
Interest.
REMIC
Remittance Rate: The REMIC I Remittance Rate or REMIC II Remittance Rate, as
applicable.
REO
Disposition: The final sale by the Servicer of any REO Property.
REO
Imputed Interest: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Interest Rate net of the Servicing Fee Rate that
would have been applicable to the related Mortgage Loan had it been outstanding)
on the unpaid principal balance of the Mortgage Loan as of the date of
acquisition thereof (as such balance is reduced pursuant to Section 3.15 by
any income from the REO Property treated as a recovery of
principal).
REO
Property: A Mortgaged Property acquired by the Trust Fund through foreclosure
or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event: As defined in Section 8.12(a)(ii).
Reporting
Date: With respect to each Distribution Date the 18th day of each calendar
month
or the immediately preceding Business Day if the 18th is not a Business
Day.
Repurchase
Price: With respect to any Mortgage Loan, (a) repurchased by the Purchaser,
an
amount equal to the sum of (i) the unpaid principal balance of such Mortgage
Loan as of the date of repurchase, (ii) interest on such unpaid principal
balance of such Mortgage Loan at the Mortgage Interest Rate from the last date
through which interest has been paid and distributed to the Trustee to the
date
of repurchase, (iii) all unreimbursed Servicing Advances and (iv) all expenses
incurred by the Servicer, the Trust or the Trustee, as the case may be, in
respect of a breach or defect, including, without limitation, (A) expenses
arising out of the Servicer’s or Trustee’s, as the case may be, enforcement of
the Purchaser’s repurchase obligation, to the extent not included in clause
(iii), and (B) any costs and damages incurred by the Trust in connection with
any violation by such Mortgage Loan of any predatory lending law or abusive
lending law, and (b) in the case of any Mortgage Loan repurchased by the related
Responsible Party, the “Repurchase Price” as defined in the related Responsible
Party Agreement.
Request
for Release: The Request for Release submitted by the Servicer to the Trustee
substantially in the form of Exhibit J.
Residual
Certificates: As specified in the Preliminary Statement.
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 vice president, any
assistant vice president, any assistant secretary, any assistant treasurer,
any
associate or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers who at such
time shall be officers to whom, with respect to a particular matter, such matter
is referred because of such officer’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible
Party: National City Bank, and its successors in interest.
Responsible
Party Agreements: The National City Bank Agreements, copies of which are
attached hereto as Exhibits Q.
Rule 144A
Letter: As defined in Section 5.02(b).
Scheduled
Insured Certificate Payment: The “Scheduled Payment” as such term is defined in
the Policy.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on any Due Date
allocable to principal and/or interest on such Mortgage Loan which, unless
otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Senior
Enhancement Percentage: With respect to any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Senior
Specified Enhancement Percentage: As of any date of determination,
60.60%.
Servicer:
Home Loan Services, Inc., or any successor servicer appointed as herein
provided, in its capacity as Servicer hereunder.
Servicer
Remittance Date: With respect to any Distribution Date and the Servicer for
payments to the Trustee, the 19th of the month in which such Distribution Date
occurs, or, if that day is not a Business Day, the immediately preceding
Business Day.
Servicer
Remittance Report: As defined in Section 4.04(d).
Servicing
Advances: The reasonable “out-of-pocket” costs and expenses (including legal
fees) incurred prior to, on, or after the Cut-off Date by the Servicer in the
performance of its servicing obligations in connection with a default,
delinquency or other unanticipated event, including, but not limited to, the
cost of (i) the preservation, restoration, inspection, protection and
payment of prior liens on of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures and litigation, in respect of
a
particular Mortgage Loan, (iii) the management (including reasonable fees
in connection therewith) and liquidation of any REO Property, (iv) refunding
to
any mortgagor such prepaid origination fees and/or finance charges that are
subject to reimbursement upon a Principal Prepayment of the related Mortgage
Loan to the extent such reimbursement is required by applicable law, and
(v) the performance of its obligations under Sections 3.01, 3.09, 3.13
and 3.15 (including the cost of obtaining any broker’s price opinion pursuant
thereto). 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 satisfaction or foreclosures
in
respect of any Mortgage Loan to the extent not recovered from the Mortgagor
or
otherwise payable under this Agreement and obtaining or correcting any legal
documentation required to be included in the Mortgage Files and necessary for
the Servicer to perform its obligations under this Agreement, correcting errors
of prior servicers, costs and expenses charged to the Servicer by the Trustee,
tax tracking, title research, flood certifications, and lender paid mortgage
insurance and compliance with the obligations under Sections 3.01 and 3.10.
The
Servicer shall not be required to make any Nonrecoverable Servicing
Advances.
Servicing
Criteria: The "servicing criteria" set forth in Item 1122(d) of Regulation
AB,
which as of the Closing Date are listed on Exhibit R hereto.
Servicing
Fee: With respect to each Mortgage Loan and any Distribution Date, an amount
equal to the product of (i) one-twelfth of the Servicing Fee Rate and
(ii) the applicable Stated Principal Balance of such Mortgage Loan as of
the last day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly. The Servicing
Fee
is payable solely from the interest portion (including recoveries with respect
to interest from Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds
and proceeds received with respect to REO Properties, to the extent permitted
by
Section 3.11) of such Scheduled Payment collected by the Servicer or as
otherwise provided under Section 3.11.
Servicing
Fee Rate: With respect to each Mortgage Loan, 0.50% per annum.
Servicing
File: With respect to each Mortgage Loan, the file retained by the Servicer
consisting of originals or copies of all documents in the Mortgage File which
are not delivered to the Trustee in the Custodial File and copies of the
Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing
Officer: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the Trustee by
the
Servicer on the Closing Date pursuant to this Agreement, as such list may from
time to time be amended.
Servicing
Transfer Costs: All reasonable out-of-pocket costs and expenses incurred by
the
Trustee in connection with the transfer of servicing from a terminated servicer,
including, without limitation, any such 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.
Similar
Law: As defined in Section 5.02(b).
60+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, two
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Specified
Overcollateralized Amount: Prior to the Stepdown Date, an amount equal to
(x)
the
sum of (1) 7.80% and (2) the Class M-7 Overcollateralization Factor times
(y)
the
Cut-off Date Pool Principal Balance. On and after the Stepdown Date, an amount
equal to (x) the sum of (1) 15.60% and (2) the Class M-7 Overcollateralization
Factor times (y) the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date, subject, until the Class Certificate Balance of
each
Class of Offered Certificates and the Class M-6 Certificates has been reduced
to
zero, to a minimum amount equal to the Overcollateralization Floor; provided,
however, that if, on any Distribution Date, a Trigger Event has occurred, the
Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans but instead will remain the same as the prior period’s Specified
Overcollateralized Amount until the Distribution Date on which a Trigger Event
is no longer occurring.
Sponsor:
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership, and its
successors in interest.
Standard
& Poor’s: Standard & Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor’s is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Standard &
Poor’s shall be Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Surveillance Group - FFMLT 2007-FFB-SS,
or such other address as Standard & Poor’s may hereafter furnish to the
Depositor, the Servicer, the Trustee and the Certificate Insurer.
Standard
& Poor’s Glossary: The Standard & Poor’s LEVELS® Glossary, in effect as
of the Closing Date.
Start-up
Day: As defined in Section 2.06.
Stated
Principal Balance: As to each Mortgage Loan and as of any date of determination,
(i) the principal balance of the Mortgage Loan at the Cut-off Date after
giving effect to payments of principal due on or before such date, minus
(ii) all amounts previously remitted to the Trustee with respect to the
related Mortgage Loan representing payments or recoveries of principal including
advances in respect of scheduled payments of principal. For purposes of any
Distribution Date, the Stated Principal Balance of any Mortgage Loan will give
effect to any scheduled payments of principal received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Servicer Remittance Date and any unscheduled principal payments and
other unscheduled principal collections received during the related Prepayment
Period, and the Stated Principal Balance of any Mortgage Loan that has prepaid
in full or has become a Liquidated Mortgage Loan during the related Prepayment
Period shall be zero.
Stepdown
Date: The earlier to occur of (a) the date on which the Class Certificate
Balance of the Class A Certificates has been reduced to zero, and
(b) the later to occur of (i) the Distribution Date in May 2010, and
(ii) the first Distribution Date on which the Senior Enhancement Percentage
is greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinated
Certificates: As specified in the Preliminary Statement.
Subsequent
Recoveries: Amounts received with respect to any Liquidated Mortgage Loan after
it has become a Liquidated Mortgage Loan and, in the case of a Charged Off
Loan,
prior to such Liquidated Mortgage Loan becoming a Released Loan.
Subservicer:
As defined in Section 3.02(a).
Subservicing
Account: As defined in Section 3.08.
Subservicing
Agreements: As defined in Section 3.02(a).
Substitute
Mortgage Loan: A Mortgage Loan substituted by the related Responsible Party
or
the Sponsor for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of, and not more than 10% less than, the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower
than and not more than 1% per annum higher than, that of the Deleted Mortgage
Loan; (iii) have a CLTV no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more than
one year less than that of) the Deleted Mortgage Loan; and (v) comply with
each related representation and warranty set forth in
Section 2.03.
Substitution
Adjustment Amount: As defined in Section 2.03(d).
Supplemental
Interest Trust: The corpus of a trust created pursuant to Section 4.08 of this
Agreement, consisting of the Interest Rate Swap Agreement, subject to the
obligation to pay amounts specified in Section 4.08.
Supplemental
Interest Trust Account: The account of that name created pursuant to Section
4.08 of this Agreement.
Supplemental
Interest Trust Trustee: Deutsche
Bank National Trust Company, as trustee on behalf of the Supplemental Interest
Trust.
Swap
LIBOR: With respect to any Distribution Date (and the related Interest Accrual
Period), the product of (i) USD-LIBOR-BBA (as used in the Interest Rate Swap
Agreement), (ii) two, and (iii) the quotient of (a) the actual number of days
in
the Interest Accrual Period for the LIBOR Certificates divided by (b)
30.
Swap
Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative Products, LP, a Delaware
limited partnership, and its successors in interest, and any successor swap
provider under any replacement Interest Rate Swap Agreement.
Swap
Termination Payment: Any payment payable by the Trust or the Swap Provider
upon
termination of the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) or a Termination Event
(as defined in the Interest Rate Swap Agreement).
Terminating
Entity: The Person that elects to exercise a Terminating Purchase pursuant
to
Section 9.01(a) hereof.
Terminating
Purchase: The purchase of the related Mortgage Loans and all other property
of
the Trust Fund pursuant to Section 9.01(a) hereof.
Termination
Price: The price paid by the Terminating Entity for the related Mortgage Loans
and all other property of the Trust Fund pursuant to Section 9.01(a)
hereof.
30
Day
Delinquency: The failure of the Mortgagor to make any Scheduled Payment due
under the Mortgage Note on a Due Date, which failure continues unremedied for
a
period of one month after the following Due Date.
Total
Monthly Excess Spread: As to any Distribution Date, an amount equal to the
excess if any, of (i) the interest collected on the related Mortgage Loans
received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Servicer Remittance Date (net of
related Expense Fees and the Premium) and plus Net Swap Receipts and less Net
Swap Payments and Swap Termination Payments (other than Defaulted Swap
Termination Payments), if any, for such Distribution Date over (ii) the sum
of amounts payable to the related Certificates on such Distribution Date
pursuant to Section 4.02(i); provided that Net Swap Receipts shall be included
in Total Monthly Excess Spread (and, correspondingly, in the Extra Principal
Distribution Amount) only to the extent of current or prior Realized Losses
not
previously reimbursed.
Transfer:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trigger
Event: With respect to any Distribution Date, a Trigger Event exists if
(i) the quotient (expressed as a percentage) of (1) the rolling three
month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal
balance of the Mortgage Loans as of the last day of the related Due Period,
equals or exceeds 13.20% of the Senior Enhancement Percentage as of the last
day
of the prior Due Period or (ii) the quotient (expressed as a percentage) of
(x) the sum of (1) the aggregate amount of Realized Losses incurred since
the Cut-off Date through the last day of the related Prepayment Period divided
by (y) the Cut-off Date Pool Principal Balance, exceeds the applicable
percentages set forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Loss
Percentage
|
|
May
2009 through April 2010
|
3.30%
for the first month, plus an additional 1/12th of 2.70% for each
month
thereafter
|
|
May
2010 through April 2011
|
6.00%
for the first month, plus an additional 1/12th of 2.00% for each
month
thereafter
|
|
May
2011 through April 2013
|
8.00%
for the first month, plus an additional 1/12th of 1.50% for each
month
thereafter
|
|
May
2012 through April 2013
|
9.50%
for the first month, plus an additional 1/12th of 0.50% for each
month
thereafter
|
|
May
2013 and thereafter
|
10.00%
|
Trust:
The express trust created hereunder in Section 2.01(c).
Trust
Fund: The corpus of the trust created hereunder consisting of (i) the
Mortgage Loans and all interest and principal received on or with respect
thereto after the related Cut-off Date, other than such amounts which were
due
on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of
this
Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Trust’s rights under the Responsible Party Agreements; (v) the Depositor’s
rights under the Representations and Warranties Agreement; (vi) the Trustee’s,
on behalf of the Holders of the Class A Certificates, rights under the Policy;
and (vii) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
Trust
REMIC: Any of REMIC I, REMIC II or REMIC III, as applicable.
Trustee:
Deutsche Bank National Trust Company, and its successors in interest and, if
a
successor trustee is appointed hereunder, such successor.
Trustee
Float Period: With respect to any Distribution Date and the related amounts
in
each Distribution Account, the period commencing on the Servicer Remittance
Date, immediately preceding such Distribution Date and ending on such
Distribution Date.
U.S.
Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; or (v) a trust, if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more U.S. Persons have authority to control all substantial
decisions of the trust. Notwithstanding the last clause of the preceding
sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996, and treated as U.S. Persons prior to such
date, may elect to continue to be U.S. Persons.
Uncertificated
Balance: The amount of any REMIC Regular Interest outstanding as of any date
of
determination. As of the Closing Date, the Uncertificated Balance of each REMIC
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial uncertificated balance. On each Distribution Date, the
Uncertificated Balance of the REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.07 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.06 and the Uncertificated Balance of REMIC
II
Regular Interest ZZ shall be increased by interest deferrals as provided in
Section 4.07. The Uncertificated Balance of each REMIC Regular Interest shall
never be less than zero.
Uncertificated
Interest: With respect to any REMIC Regular Interest for any Distribution Date,
one month’s interest at the REMIC Remittance Rate applicable to such REMIC
Regular Interest for such Distribution Date, accrued on the Uncertificated
Balance thereof immediately prior to such Distribution Date. Uncertificated
Interest in respect of the REMIC Regular Interests shall accrue on the basis
of
a 360-day year consisting of twelve 30-day months. Uncertificated Interest
with
respect to each Distribution Date, as to any REMIC Regular Interest, shall
be
reduced by an amount equal to the sum of (a) the aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date to the extent not covered by
payments pursuant to Section 3.25 of this Agreement and (b) the aggregate amount
of any Relief Act Interest Shortfall, if any allocated, in each case, to such
REMIC Regular Interest pursuant to Section 4.02. In addition, Uncertificated
Interest with respect to each Distribution Date, as to any REMIC Regular
Interest, shall be reduced by Realized Losses, if any, allocated to such REMIC
Regular Interest pursuant to Section 4.06.
Uncertificated
Notional Amount: With respect to REMIC II Regular Interest SWAP-IO and each
Distribution Date listed below, the aggregate Uncertificated Balance of the
REMIC I Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through I-57-A
|
|
10
|
I-10-A
through I-57-A
|
|
11
|
I-11-A
through I-57-A
|
|
12
|
I-12-A
through I-57-A
|
|
13
|
I-13-A
through I-57-A
|
|
14
|
I-14-A
through I-57-A
|
|
15
|
I-15-A
through I-57-A
|
|
16
|
I-16-A
through I-57-A
|
|
17
|
I-17-A
through I-57-A
|
|
18
|
I-18-A
through I-57-A
|
|
19
|
I-19-A
through I-57-A
|
|
20
|
I-20-A
through I-57-A
|
|
21
- 23
|
I-21-A
through I-57-A
|
|
24
|
I-22-A
through I-57-A
|
|
25
|
I-23-A
through I-57-A
|
|
26
|
I-24-A
through I-57-A
|
|
27
|
I-25-A
through I-57-A
|
|
28
|
I-26-A
through I-57-A
|
|
29
|
I-27-A
through I-57-A
|
|
30
|
I-28-A
through I-57-A
|
|
31
|
I-29-A
through I-57-A
|
|
32
|
I-30-A
through I-57-A
|
|
33
|
I-31-A
through I-57-A
|
|
34
|
I-32-A
through I-57-A
|
|
35
|
I-33-A
through I-57-A
|
|
36
|
I-34-A
through I-57-A
|
|
37
|
I-35-A
through I-57-A
|
|
38
|
I-36-A
through I-57-A
|
|
39
|
I-37-A
through I-57-A
|
|
40
|
I-38-A
through I-57-A
|
|
41
|
I-39-A
through I-57-A
|
|
42
|
I-40-A
through I-57-A
|
|
43
|
I-41-A
through I-57-A
|
|
44
|
I-42-A
through I-57-A
|
|
45
|
I-43-A
through I-57-A
|
|
46
|
I-44-A
through I-57-A
|
|
47
|
I-45-A
through I-57-A
|
|
48
|
I-46-A
through I-57-A
|
|
49
|
I-47-A
through I-57-A
|
|
50
|
I-48-A
through I-57-A
|
|
51
|
I-49-A
through I-57-A
|
|
52
|
I-50-A
through I-57-A
|
|
53
|
I-51-A
through I-57-A
|
|
57
|
I-52-A
through I-57-A
|
|
55
|
I-53-A
through I-57-A
|
|
56
|
I-54-A
through I-57-A
|
|
57
|
I-55-A
through I-57-A
|
|
58
|
I-56-A
and I-57-A
|
|
59
|
I-57-A
|
|
thereafter
|
$0.00
|
Underwriting
Guidelines: The underwriting guidelines pursuant to which a related Mortgage
Loan was originated.
Unpaid
Interest Amounts: As of any Distribution Date and any Class of Certificates,
the
sum of (a) the portion of the related Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid
amount in clause (a) at the applicable Pass-Through Rate (to the extent
permitted by applicable law).
Voting
Rights: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. As
of any
date of determination, (a) 1% of all Voting Rights shall be allocated to
the Class X Certificates, if any (such Voting Rights to be allocated among
the Holders of Certificates of each such Class in accordance with their
respective Percentage Interests), (b) 1% of all Voting Rights shall be
allocated to the Class P Certificates, if any, and (c) the remaining
Voting Rights shall be allocated among Holders of the remaining Classes of
Certificates (other than the Class R Certificates and Class X-1 Certificates)
in
proportion to the Certificate Balances of their respective Certificates on
such
date; provided, however that until such time as the Policy is no longer
outstanding in accordance with its terms, the Certificate Insurer shall be
entitled to exercise all of the Voting Rights of the Class A Certificates.
The
Class R Certificates and Class X-1 Certificates shall have no Voting
Rights.
WAC
Cap:
With respect to the Mortgage Loans as of any Distribution Date, a per annum
rate
equal to (i) the weighted average of the Adjusted Net Mortgage Interest Rates
then in effect on the beginning of the related Due Period on the Mortgage Loans
(less, in the case of the Class A Certificates, the Premium Percentage) and
(ii)
with respect to each Class of Offered Certificates and the Class M-6
Certificates, multiplied by a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Interest
Accrual Period related to such Distribution Date. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the REMIC II Remittance Rates on each REMIC II Regular Interest
(other than REMIC II Regular Interest SWAP-IO, weighted on the basis of the
Uncertificated Balance of each such REMIC II Regular Interest.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans. (a)
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders and the Certificate Insurer, without recourse,
all the right, title and interest of the Depositor in and to the Trust Fund,
and
the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Trustee for the benefit of the
related Certificateholders and the Certificate Insurer the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the
original Mortgage Note (except for any Mortgage Notes for which there is a
lost
note affidavit and a copy of the Mortgage Note) bearing all intervening
endorsements showing a complete chain of endorsement from the originator to
the
last endorsee, endorsed “Pay to the order of _____________, without recourse”
and signed in the name of the last endorsee. To the extent that there is no
room
on the face any Mortgage Note for an endorsement, the endorsement may be
contained on an allonge, unless state law does not so allow and the Trustee
has
been advised by the Depositor that state law does not so allow. If the Mortgage
Loan was acquired by the [Original Loan Seller] in a merger, the endorsement
must be by “[last endorsee], successor by merger to [name of predecessor]”. If
the Mortgage Loan was acquired or originated by the last endorsee while doing
business under another name, the endorsement must be by “[last endorsee],
formerly known as [previous name]”;
(ii) the
original of any guarantee executed in connection with the Mortgage Note, if
provided;
(iii) the
original Mortgage, with evidence of recording thereon or a certified true copy
of such Mortgage submitted for recording. If in connection with any Mortgage
Loan, the related Responsible Party cannot deliver or cause to be delivered
the
original Mortgage with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the related Responsible Party (to the extent that it has not
previously delivered the same to the Purchaser or the Trustee), shall deliver
or
cause to be delivered to the Trustee a photocopy of such Mortgage, together
with
(A) in the case of a delay caused by the public recording office, an officer’s
certificate of the related Responsible Party, or evidence of certification
on
the face of such photocopy of such Mortgage, or certified by the title company,
escrow agent, or closing attorney stating that such Mortgage has been dispatched
to the appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Trustee upon receipt thereof by the related
Responsible Party; or (B) in the case of a Mortgage where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage
is
lost after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the
original recorded Mortgage;
(iv) the
originals of all assumption, modification, consolidation or extension agreements
(if provided), with evidence of recording thereon or a certified true copy
of
such agreement submitted for recording;
(v) except
with respect to each MERS Designated Mortgage Loan, the original Assignment
of
Mortgage for each Mortgage Loan endorsed in blank and in recordable
form;
(vi) the
originals of all intervening Assignments of Mortgage (if any) evidencing a
complete chain of assignment from the applicable originator (or MERS with
respect to each MERS Designated Mortgage Loan) to the last endorsee with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded Assignments of Mortgage,
the related Responsible Party (to the extent that it has not previously
delivered the same to the Purchaser or the Trustee), shall deliver or cause
to
be delivered to the Trustee a photocopy of such intervening assignment, together
with (A) in the case of a delay caused by the public recording office, an
officer’s certificate of such Responsible Party, or evidence of certification on
the face of such photocopy of such intervening assignment, or certified by
the
title company, escrow agent, or closing attorney stating that such intervening
Assignment of Mortgage has been dispatched to the appropriate public recording
office for recordation and that such original recorded intervening Assignment
of
Mortgage or a copy of such intervening Assignment of Mortgage certified by
the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Trustee upon receipt thereof by the related Responsible Party, or (B)
in
the case of an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy of
such intervening assignment certified by such public recording office to be
a
true and complete copy of the original recorded intervening
assignment;
(vii) the
original or duplicate lender’s title policy and any riders thereto or any one of
an original title binder, an original or copy of the preliminary title report
or
an original or copy of the title commitment, and if copies then certified by
the
title company; and
(viii) a
security agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage (if provided).
The
Depositor shall use reasonable efforts to assist the Trustee and the Servicer
in
enforcing the obligations of the Purchaser under the related Responsible Party
Agreements.
Each
Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a
lost
note affidavit as of the Closing Date. In the event one or more lost note
affidavits are provided to cover multiple missing Mortgage Notes on the Closing
Date, the Depositor shall use reasonable efforts to cause the related
Responsible Party to deliver to the Trustee the applicable individual lost
note
affidavits within ten (10) Business Days of the Closing Date. If such
Responsible Party fails to deliver the required individual lost note affidavits
within the specified period of time, the Trustee shall notify such Responsible
Party to take such remedial actions, including, without limitation, the
repurchase by such Responsible Party of such Mortgage Loan within 60 days of
the
Closing Date.
The
Depositor shall use reasonable efforts to cause the Purchaser and the related
Responsible Party to deliver to the Trustee the applicable recorded document
promptly upon receipt from the respective recording office but in no event
later
than 150 days from the Closing Date.
If
any
Mortgage has been recorded in the name of Mortgage Electronic Registration
System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the
Trustee will be required to be prepared or delivered and instead, the applicable
Servicer shall take all reasonable actions as are necessary at the expense
of
the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The
Depositor shall use reasonable efforts to cause the Purchaser and the related
Responsible Party, as applicable, to forward, with respect to the related
Mortgage Loans, to the Trustee additional documents evidencing an assumption,
modification, consolidation or extension of a related Mortgage Loan approved
by
such Responsible Party in accordance with the terms of the related Responsible
Party Agreements. All such mortgage documents held by the Trustee as to each
Mortgage Loan shall constitute the “Custodial File.” The Trustee shall have no
duty or obligation to request or verify whether any such mortgage documents
exist.
On
or
prior to the Closing Date, the Depositor shall use reasonable efforts to cause
the Purchaser or related Responsible Party to deliver to the Trustee Assignments
of Mortgages, in blank, for each applicable Mortgage Loan (except with respect
to each MERS Designated Mortgage Loan). The Depositor shall use reasonable
efforts to cause the Purchaser or related Responsible Party to cause the
Assignments of Mortgage with completed recording information to be provided
to
the Servicer in a reasonably acceptable manner. In the event that any Assignment
of Mortgage is not recorded or is improperly recorded, the applicable Servicer
will have no liability directly resulting from such lack of recordation or
such
improper recordation and solely resulting from any failure to receive notices
made with respect to such Assignment of Mortgage, except for any liability
incurred by reason of willful misfeasance, bad faith or negligence by the
Servicer in the performance hereunder or by reason of reckless disregard of
its
obligations and duties hereunder. No
later
than thirty (30) Business Days following the later of the Closing Date and
the
date of receipt by the Trustee of the fully completed Assignments of Mortgages
in recordable form, the Depositor shall promptly submit or cause to be submitted
for recording, at the expense of the related Responsible Party pursuant to
the
related Responsible Party Agreement, at no expense to the Trust Fund, the
Depositor or the Trustee in the appropriate public office for real property
records, each Assignment of Mortgage referred to in Section
2.01(b)(v).
Notwithstanding the foregoing, however, for administrative convenience and
facilitation of servicing and to reduce closing costs, the Assignments of
Mortgage shall not be required to be completed and submitted for recording
with
respect to any Mortgage Loan (i) except with respect to any Mortgage Loan
located in Maryland or Kentucky, unless the Trustee and the Depositor receive
written 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
(which, with respect to the Class A Certificates, shall be without giving effect
to the Policy) or (ii) if such Mortgage Loan is a MERS Designated Mortgage
Loan.
If the Assignment of Mortgage is to be recorded, the Depositor shall use
reasonable efforts to cause the Purchaser to assign the Mortgage at the
Purchaser’s expense to “Deutsche Bank National Trust Company, as trustee under
the Pooling and Servicing Agreement dated as of December 1, 2006, FFMLT
2007-FFB-SS.” In the event that any such assignment is lost or returned
unrecorded because of a defect therein with respect to any Mortgage Loan, and
such defect is not cured, the Trust shall cause the Purchaser to repurchase
such
Mortgage Loan pursuant to the related Responsible Party Agreements.
On
or
prior to the Closing Date, the Depositor shall deliver to the Trustee, the
Certificate Insurer and the Servicer a copy of the Data Tape Information in
electronic, machine readable medium in a form mutually acceptable to the
Depositor, the Servicer and the Trustee. Within ten (10) Business Days of the
Closing Date, the Depositor shall deliver a copy of the complete related
Mortgage Loan Schedule to the Trustee, the Certificate Insurer and the
Servicer.
In
the
event, with respect to any Mortgage Loan, that such original or copy of any
document submitted for recordation to the appropriate public recording office
is
not so delivered to the Trustee within 180 days of the Closing Date, the Trustee
shall notify the Depositor and the Depositor shall take or cause to be taken
such remedial actions under the related Responsible Party Agreement as may
be
permitted to be taken thereunder, including without limitation, if applicable,
the repurchase by the related Responsible Party of such Mortgage Loan. The
foregoing repurchase remedy shall not apply in the event that the related
Responsible Party cannot deliver such original or copy of any document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided, that the related Responsible Party shall instead deliver
a recording receipt of such recording office or, if such recording receipt
is
not available, an officer’s certificate of an officer of the related Responsible
Party confirming that such document has been accepted for
recording.
Notwithstanding
anything to the contrary contained in this Section 2.01, in those instances
where the public recording office retains or loses the original Mortgage or
assignment after it has been recorded, the obligations of the related
Responsible Party shall be deemed to have been satisfied upon delivery by the
related Responsible Party to the Trustee prior to the Closing Date of a copy
of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the “Trust”)
to be known, for convenience, as “FFMLT 2007-FFB-SS” and Deutsche Bank National
Trust Company is hereby appointed as Trustee in accordance with the provisions
of this Agreement.
The
parties hereto acknowledge and agree that it is the policy and intention of
the
Trust to acquire only Mortgage Loans meeting the requirements set forth in
this
Agreement, including the requirement that no Mortgage Loan be a High Cost
Mortgage Loan and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 be governed by the Georgia Fair Lending
Act.
(d) The
Trust
shall have the capacity, power and authority, and the Trustee on behalf of
the
Trust is hereby authorized, to accept the sale, transfer, assignment, set over
and conveyance by the Depositor to the Trust of all the right, title and
interest of the Depositor in and to the Trust Fund (including, without
limitation, the Mortgage Loans, the Responsible Party Agreements and the
Representations and Warranties Agreement) pursuant to Section 2.01(a). The
parties hereby acknowledge and agree that the execution and delivery of the
Interest Rate Swap Agreement by the Supplemental Interest Trust Trustee on
behalf of the Supplemental Interest Trust was authorized and is hereby ratified
and confirmed.
Section
2.02 Acceptance
by the Trustee of the Mortgage Loans.
The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets
as are included in the Trust Fund, in trust for the exclusive use and benefit
of
all present and future Certificateholders and the Certificate Insurer. The
Trustee acknowledges that it will maintain possession of the related Mortgage
Notes in the State of California unless otherwise permitted to maintain them
elsewhere by the
Certificate Insurer
and the
Rating Agencies.
On
the
Closing Date, the Trustee shall ascertain that all documents required to be
reviewed by it are in its possession, and shall deliver to the Depositor, the
Certificate Insurer and the Servicer an Initial Certification, in the form
annexed hereto as Exhibit E certifying receipt of a Mortgage Note and
Assignment of Mortgage for each Mortgage Loan with any exception thereon, and
shall deliver to the Depositor, the Certificate Insurer and the Servicer a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F within 90 days (or, with respect to any Substitute Mortgage Loan
delivered to the Trustee, within 30 days after the receipt of the mortgage
file
by the Trustee) after the Closing Date to the effect that, as to each Mortgage
Loan listed in the related Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
required to be reviewed by it are in its possession; (ii) such documents
have been reviewed by it and appear regular on their face and relate to such
Mortgage Loan; (iii) based on its examination and only as to the foregoing
documents, the information set forth in items (1), (2), (3) and (13) of the
related Mortgage Loan Schedule and items (1), (2), (3) and (13) of the related
Data Tape Information respecting such Mortgage Loan is correct; and
(iv) each Mortgage Note has been endorsed as provided in Section 2.01
of this Agreement. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
The
Trustee shall retain possession and custody of each Custodial File in accordance
with and subject to the terms and conditions set forth herein. The Servicer
shall promptly deliver to the Trustee, upon the execution or receipt thereof,
the originals of such other documents or instruments constituting the Custodial
File as come into the possession of the Servicer from time to time.
The
Depositor shall use reasonable efforts to cause the related Responsible Party
to
deliver to the Servicer copies of all trailing documents required to be included
in the Custodial File at the same time the original or certified copies thereof
are delivered to the Trustee, including but not limited to such documents as
the
title insurance policy and any other Mortgage Loan documents upon return from
the public recording office. The Depositor shall use reasonable efforts to
cause
the related Responsible Party to deliver such documents at such Responsible
Party’s expense to the Servicer and in no event shall the Servicer be
responsible for any expenses relating to such delivery obligation.
Section
2.03 Representations,
Warranties and Covenants of the Servicer.
(a)
Home
Loan Services hereby makes the representations and warranties set forth in
Schedule II hereto to the Depositor and the Trustee as of the Closing
Date.
(b) It
is
understood and agreed by the Servicer and the Trustee that the representations
and warranties set forth in this Section 2.03 shall survive the transfer of
the related Mortgage Loans by the Depositor to the Trustee, and shall inure
to
the benefit of the Depositor and the Trustee, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by the
Depositor, the Certificate Insurer, the Trustee or the Servicer of a breach
of
any of the foregoing representations and warranties, the party discovering
such
breach shall give prompt written notice to the others.
(c) In
connection with any repurchase or substitution of a Mortgage Loan pursuant
to
this Section 2.03 or the Responsible Party Agreements, the Servicer shall,
based
on information provided by the Purchaser, amend the related Mortgage Loan
Schedule for the benefit of the Certificateholders and the Certificate Insurer
to reflect the removal of such Deleted Mortgage Loan or Loans and the
substitution of the Substitute Mortgage Loan or Loans and the Servicer shall
deliver the amended related Mortgage Loan Schedule to the Trustee. Upon any
such
repurchase or any substitution and the deposit to the Collection Account of
any
Substitution Adjustment Amount, the Trustee shall release the Mortgage File
held
for the benefit of the related Certificateholders and the Certificate Insurer
relating to such Deleted Mortgage Loan to the Purchaser or the related
Responsible Party, as applicable, and shall execute and deliver at the direction
of the Purchaser or the related Responsible Party, as applicable, such
instruments of transfer or assignment prepared by the Purchaser or the related
Responsible Party, as applicable, in each case without recourse, as shall be
necessary to vest title in the Purchaser or the related Responsible Party,
as
applicable, or their respective designees, the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
(d) For
any
month in which the Purchaser or the related Responsible Party, as applicable,
substitutes one or more Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the Servicer will determine the amount (if any) by which the
aggregate unpaid principal balance of all such Substitute Mortgage Loans as
of
the date of substitution is less than the aggregate Stated Principal Balance
of
all such Deleted Mortgage Loans (after application of the scheduled principal
portion of the Scheduled Payments due in the Due Period of substitution). The
Depositor shall use reasonable efforts to cause the Purchaser or the related
Responsible Party, as applicable, to remit to the Servicer for deposit into
the
Collection Account on or before the next Servicer Remittance Date the amount
of
such shortage (the “Substitution Adjustment Amount”).
(e) In
the
event that a Mortgage Loan shall have been repurchased pursuant to the
Responsible Party Agreements, the proceeds from such repurchase shall be
deposited in the Collection Account by the Servicer, pursuant to
Section 3.10 on or before the next Servicer Remittance Date and upon such
deposit of the Repurchase Price, and receipt of a Request for Release in the
form of Exhibit J hereto, the Trustee shall release the related Custodial
File held for the benefit of the related Certificateholders and the Certificate
Insurer to such Person as directed by the Servicer, and the Trustee shall
execute and deliver at such Person’s direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall
be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing, together
with any related indemnification obligations, shall constitute the sole remedy
against such Persons respecting such breach available to related
Certificateholders, the Depositor, the Servicer or the Trustee on their
behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Custodial Files to the Trustee for the
benefit of the Certificateholders and the Certificate Insurer.
Section
2.04 [Reserved].
Section
2.05 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates and the
Certificate Insurer.
Section
2.06 REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Start-up Day” for purposes of the
REMIC Provisions shall be the Closing Date. The “latest possible maturity date”
is the Distribution Date in July 2035, which is the Distribution Date following
the latest Mortgage Loan maturity date.
Section
2.07 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee, the
Certificate Insurer and the Servicer that as of the date of this Agreement
or as
of such date specifically provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the Servicer and the Trustee
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any term,
condition or provision of any material indenture, deed of trust, contract or
other agreement or instrument to which the Depositor or any of its subsidiaries
is a party or by which it or any of its subsidiaries is bound; (ii) results
or will result in a violation of any law, rule, regulation, order, judgment
or
decree applicable to the Depositor of any court or governmental authority having
jurisdiction over the Depositor or its subsidiaries; or (iii) results in
the creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on the
Closing Date, the Depositor had good title to, and was the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the Trustee.
The transfer of each Mortgage Note and each Mortgage as and in the manner
contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders and the Certificate
Insurer, all right, title, and interest of the Depositor thereto as note holder
and mortgagee or (ii) to grant to the Trustee, for the benefit of the
Certificateholders and the Certificate Insurer, the security interest referred
to in Section 10.04.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.07 shall survive delivery of the respective
Custodial Files to the Trustee and shall inure to the benefit of the Trustee
and
the Certificate Insurer.
Section
2.08 Enforcement
of Purchaser and Responsible Party Obligations.
Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made by the Purchaser or Responsible Party pursuant to the Responsible
Party Agreements, the party discovering such breach shall give prompt written
notice thereof to the other parties to this Agreement, the Certificate Insurer
and the Purchaser or the Responsible Party, as applicable. The Trustee shall
take such action, with the Depositor’s and, only if the Policy is outstanding in
accordance with its terms, the Certificate Insurer’s written consent, with
respect to such breach under the Responsible Party Agreements as may be
necessary or appropriate to enforce the rights of the Trust with respect
thereto.
Section
2.09 Purposes
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
(f) The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or as required or authorized by the terms of this Agreement while
any
Certificate or the Policy is outstanding.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Servicer
to Service Mortgage Loans. (a)
For and
on behalf of the Certificateholders and the Certificate Insurer, the Servicer
shall service and administer the Mortgage Loans in accordance with the terms
of
this Agreement and in accordance with the respective Mortgage Loans and, to
the
extent consistent with such terms, in compliance with all applicable federal,
state and local laws, giving due consideration to customary and usual standards
of practice of mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any
relationship that the Servicer, any Subservicer or any Affiliate of the Servicer
or any Subservicer 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 P&I Advances or Servicing Advances;
or
(iv) the
Servicer’s or any Subservicer’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 shall seek to maximize the
timely and complete recovery of principal and interest on the related 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 Subservicers 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 Subservicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with Accepted Servicing Practices, to execute and deliver 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 related
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 in the name of the Trust. 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. Subject to Section 3.16, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer
and
any Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer and each
Subservicer, and this Agreement shall constitute, a power of attorney to carry
out such duties including a power of attorney to take title to Mortgaged
Properties after foreclosure on behalf of the Trustee and in the name of the
Trust. The Trustee shall execute a power of attorney in the form attached hereto
as Exhibit P in favor of the Servicer and/or each Subservicer for the purposes
described herein to the extent necessary or desirable to enable the Servicer
to
perform its duties hereunder. The Trustee shall not be liable for the actions
or
inactions of the Servicer or any Subservicers under such powers of attorney.
The
Trust shall be liable for such actions and inactions, to the extent so provided
in this Agreement, unless such actions or inactions are outside the
authorization provided in the powers of attorney. If
the
Servicer receives any notice of suit, litigation or proceeding in the name
of
Deutsche Bank National Trust Company, then the Servicer shall promptly forward
a
copy of same to the Trustee unless the notice of said suit, litigation or
proceeding was provided by the Trustee to the Servicer.
(b) 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 related Mortgaged Properties
(to the extent the Servicer has received reasonable timely written notice that
such taxes or assessments have not been paid by the related Mortgagor or the
owner or the servicer of a related First Lien Mortgage Loan; provided that
the
Servicer shall not be required to have tax contracts covering Mortgage Loans),
which advances shall be Servicing Advances reimbursable in the first instance
from related collections from the Mortgagors, and further as provided in
Section 3.11. Any cost incurred by the Servicer or by Subservicers in
effecting the timely payment of taxes and assessments on a Mortgaged Property
shall not be added to the unpaid principal balance of the related Mortgage
Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding
anything in this Agreement to the contrary, however, the Servicer need not
make
any future advances with respect to a Mortgage Loan if the Servicer makes a
good
faith determination that such advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as set forth
in Section 4.01 or if such Mortgage Loan is 180 days Delinquent.
(c) The
Servicer shall not (i) permit any modification with respect to any related
Mortgage Loan that would change the Mortgage Interest Rate, reduce or increase
the principal balance (except for reductions resulting from actual payments
of
principal) or change the final maturity date on such Mortgage Loan (except
for
(A) a reduction of interest or principal payments resulting from the
application of the Servicemembers Civil Relief Act or any similar state statutes
or (B) as provided in Section 3.07, if 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 related 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 either Trust REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
“prohibited transactions” or “contributions after the start-up day” under the
REMIC Provisions, or (iii) except as provided in Section 3.07(a),
waive any Prepayment Premiums.
(d) 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.
(e) If
the
Mortgage relating to a Mortgage Loan had a related First Lien Mortgage Loan
on
the related Mortgaged Property as of the Cut-off Date, then the Servicer, in
such capacity, may consent to the refinancing of the related First Lien Mortgage
Loan, provided that the following requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing;
(ii) the
interest rate, or, in the case of an adjustable rate related First Lien Mortgage
Loan, the maximum interest rate, for the loan evidencing the refinanced senior
lien is no more than 2.0% higher than the interest rate or the maximum interest
rate, as the case may be, on the existing First Lien Mortgage Loan immediately
prior to the date of such refinancing; and
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative
amortization.
The
Servicer further is authorized and empowered hereunder, on behalf of the
Certificateholders, the Certificate Insurer and the Trustee, in its own name
or
in the name of the Subservicer, when the Servicer or the Subservicer, 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 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 incurred in
connection with the actions described in the preceding sentence or as a result
of MERS discontinuing or becoming unable to continue operations in connection
with the MERS System, shall be subject to withdrawal by the Servicer from the
Collection Account (provided that such expenses constitute “unanticipated
expenses” within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii)).
Section
3.02 Subservicing
Agreements between the Servicer and Subservicers.
(a)
The
Servicer may enter into subservicing agreements with subservicers (each, a
“Subservicer”), for the performance of a substantial portion of the material
servicing functions and administration of the related Mortgage Loans
(“Subservicing Agreements”).
(b) Each
Subservicer 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 Subservicer to
perform its obligations hereunder and under the Subservicing Agreement,
(ii) an institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts insured
by
the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer.
Each Subservicing Agreement must impose on the Subservicer requirements
conforming to the provisions set forth in Section 3.08 and provide for
servicing of the related Mortgage Loans consistent with the terms of this
Agreement. The Servicer will examine each Subservicing Agreement and will be
familiar with the terms thereof. The terms of any Subservicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Servicer
and the Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing 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 Trustee or the
Certificate Insurer,
without
the consent of the Trustee and the Certificate Insurer. Any variation without
the consent of the Trustee and the Certificate Insurer from the provisions
set
forth in Section 3.08 relating to insurance or priority requirements of
Subservicing Accounts, or credits and charges to the Subservicing Accounts
or
the timing and amount of remittances by the Subservicers to the Servicer, are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee, the Certificate Insurer
and the Depositor copies of all Subservicing 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, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement, including, without limitation, any obligation to make
advances in respect of delinquent payments as required by a Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing 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.
(d) The
Servicer shall cause any Subservicer engaged by it (or by any Subservicer)
for
the benefit of the Depositor, the Certificate Insurer and the Trustee to comply
with the provisions of this Section 3.02 and with Sections 3.22, 3.23 and
8.12 of this Agreement to the same extent as if such Subservicer were the
Servicer, and to provide the information required with respect to the Mortgage
Loans and such Subservicer under Section 8.12(g) of this Agreement. The
Servicer shall be responsible for obtaining from each such Subservicer and
delivering to applicable Persons any servicer compliance statement required
to
be delivered by such Subservicer under Section 3.22 and any assessment of
compliance report and related accountant’s attestation required to be delivered
by such Subservicer under Section 3.23, in each case as and when required
to be delivered.
(e) Subject
to the conditions set forth in this Section 3.02, the Servicer and any
Subservicer engaged by the Servicer is permitted to utilize one or more
subcontractors to perform certain of its obligations hereunder. The Servicer
shall promptly upon request provide to the Depositor, the Certificate Insurer
and the Trustee a written description (in form and substance satisfactory to
the
Depositor) of the role and function of each subcontractor utilized by the
Servicer or any such Subservicer, specifying, if applicable, not later than
the
date specified for delivery of the annual report on assessment of compliance
set
forth in Section 3.23 (i) the identity of each such subcontractor, if any,
that
is “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, and (ii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each subcontractor identified pursuant to clause (i) of this paragraph.
Unless a Form 15 Suspension Notice shall have been filed with respect to the
Trust Fund and for so long as the Trust Fund is subject to the Exchange Act
reporting requirements, as a condition to the utilization by the Servicer or
any
such Subservicer of any subcontractor determined to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB,
the Servicer shall cause any such subcontractor used by the Servicer (or by
any
such Subservicer) for the benefit of the Depositor, the Certificate Insurer
and
the Trustee to comply with the provisions of Section 8.12 of this
Agreement. The Servicer shall be responsible for obtaining from each such
subcontractor and delivering to the applicable Persons any assessment of
compliance report and related accountant’s attestation required to be delivered
by such subcontractor under Section 3.23, in each case as and when required
to be delivered.
Notwithstanding
the foregoing, if the Servicer engages a subcontractor in connection with the
performance of any of its duties under this Agreement, the Servicer shall be
responsible for determining whether such subcontractor is a “servicer” within
the meaning of Item 1101 of Regulation AB and whether any such affiliate or
third-party vendor meets the criteria in Item 1108(a)(2)(i) through (iii) of
Regulation AB. If the Servicer determines, pursuant to the preceding
sentence, that such subcontractor is a “servicer” within the meaning of
Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB, then such subcontractor shall
be deemed to be a Subservicer for purposes of this Agreement (and shall not
be
required to meet the requirements of a Subservicer set forth in Section
3.02(b)), the engagement of such Subservicer shall not be effective unless
and
until notice is given pursuant to Section 3.02(a) and the Servicer shall
comply with Section 3.02(d) with respect thereto.
Section
3.03 Successor
Subservicers.
The
Servicer shall be entitled to terminate any Subservicing Agreement and the
rights and obligations of any Subservicer pursuant to any Subservicing Agreement
in accordance with the terms and conditions of such Subservicing Agreement.
In
the event of termination of any Subservicer, all servicing obligations of such
Subservicer shall be assumed simultaneously by the Servicer without any act
or
deed on the part of such Subservicer or the Servicer, and the Servicer either
shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any
Subservicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Depositor or the Trustee 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
an Event of Default) with respect to the related Mortgage Loans.
Section
3.04 Liability
of the Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Servicer shall remain obligated and primarily liable to the Trustee for
the
servicing and administering of the related Mortgage Loans in accordance with
the
provisions of Section 3.01 without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering such Mortgage Loans. The Servicer shall be entitled to enter
into
any agreement with a Subservicer for indemnification of the Servicer by such
Subservicer and nothing contained in this Agreement shall be deemed to limit
or
modify such indemnification.
Section
3.05 No
Contractual Relationship between Subservicers and the Trustee.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
shall be deemed to be between the Subservicer and the Servicer alone, and the
Trustee (or any successor servicer), shall not be deemed a party thereto and
shall have no claims, rights, obligations, duties or liabilities with respect
to
the Subservicer except as set forth in Section 3.06. The Servicer shall be
solely liable for all fees owed by it to any Subservicer, irrespective of
whether the Servicer’s compensation pursuant to this Agreement is sufficient to
pay such fees.
Section
3.06 Assumption
or Termination of Subservicing Agreements by Trustee.
In the
event the Servicer at any time shall for any reason no longer be the servicer
(including by reason of the occurrence of an Event of Default) with respect
to
the related Mortgage Loans, the Trustee or its designee, or another successor
servicer if the successor servicer is not the Trustee, shall thereupon assume
all of the rights and obligations of the Servicer under each Subservicing
Agreement that the Servicer may have entered into, with copies thereof provided
to the Trustee prior to the Trustee assuming such rights and obligations, unless
the Trustee elects to terminate any Subservicing Agreement in accordance with
its terms as provided in Section 3.03.
Upon
such
assumption, the Trustee its designee or the successor servicer 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 Subservicing
Agreement to which the predecessor servicer was a party to the same extent
as if
each Subservicing 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 Subservicing Agreement that arose before it ceased to
be
the Servicer and (ii) none of the Depositor, the Trustee, their designees
or any successor to the 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 Subservicing Agreement
and the Mortgage Loans then being serviced by it 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 Subservicing Agreements to
the
assuming party.
Section
3.07 Collection
of Certain Mortgage Loan Payments. (a)
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the related 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
related Mortgage Loans and, to the extent applicable, held for its own account.
Consistent with the foregoing and Accepted Servicing Practices, the Servicer
may
(i) waive any late payment charge or, if applicable, any default interest,
or (ii) extend the due dates for the Scheduled 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 related 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 to the extent required by Section 4.01 and in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to
Section 4.01(d) pursuant to which the Servicer shall not be required to
make any such advances that are Nonrecoverable P&I Advances or P&I
Advances for any Mortgage Loan that is 180 days Delinquent. 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 also waive,
modify or vary any term of such Mortgage Loan (including modifications that
would change the Mortgage Interest Rate, forgive the payment of principal or
interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal
or
interest, postponements, or indulgences collectively referred to herein as
“Forbearance”); provided, however, that the final maturity date of any Mortgage
Loan may not be extended beyond the applicable Final Scheduled Distribution
Date. The Servicer’s analysis supporting any Forbearance and the conclusion that
any Forbearance meets the standards of Section 3.01 shall be reflected in
writing in the applicable Servicing File or on the Servicer’s servicing records.
In addition, notwithstanding the foregoing, the Servicer may also waive (or
permit a Subservicer to waive), in whole or in part, a Prepayment Premium if
such waiver would, in the Servicer’s judgment, maximize recoveries on the
related Mortgage Loan or if such Prepayment Premium is (i) not permitted to
be collected by applicable law or regulation, or the collection thereof would
be
considered “predatory” pursuant to written guidance published by any applicable
federal, state or local regulatory authority having jurisdiction over such
matters, or (ii) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership or other similar laws relating
to creditor’s rights or (2) due to acceleration in connection with a
foreclosure or other involuntary payment or the Servicer has not been provided
with information sufficient to enable it to collect the Prepayment Premium.
If a
Prepayment Premium is waived other than as permitted in this
Section 3.07(a), then the Servicer is required to pay the amount of such
waived Prepayment Premium, for the benefit of the Holders of the Class P
Certificates, as applicable, by depositing such amount into the Collection
Account together with and at the time that the amount prepaid on the related
Mortgage Loan is required to be deposited into the Collection Account; provided,
however, that the Servicer shall not have an obligation to pay the amount of
any
uncollected Prepayment Premium if the failure to collect such amount is the
direct result of inaccurate or incomplete information on the related Mortgage
Loan Schedule in effect at such time.
(b) The
applicable Servicer shall give notice to the Trustee, the Certificate Insurer,
each Rating Agency and the Depositor of any proposed change of the location
of
the Collection Account within a reasonable period of time prior to any change
thereof.
Section
3.08 Subservicing
Accounts.
In
those cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more accounts (collectively, the “Subservicing Account”). The
Subservicing Account shall be an Eligible Account and shall otherwise be
acceptable to the Servicer. The Subservicer shall deposit 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
one Business Day after the Subservicer’s receipt thereof, all proceeds of the
related Mortgage Loans received by the Subservicer less its servicing
compensation to the extent permitted by the Subservicing Agreement, and shall
thereafter deposit such amounts in the Subservicing Account, in no event more
than two Business Days after the deposit of such funds into the clearing
account. The Subservicer shall thereafter deposit such proceeds in the
Collection Account of the Servicer 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 Subservicing Account. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on the related
Mortgage Loans when the Subservicer receives such payments.
Section
3.09 [Reserved].
Section
3.10 Collection
Accounts.
(a)
On
behalf of the Trustee and the Servicer shall establish and maintain, or cause
to
be established and maintained, one or more segregated Eligible Accounts (each
such account or accounts, a “Collection Account”), held in trust for the benefit
of the Trustee. Funds in the Collection Account shall not be commingled with
any
other funds of the Servicer. On behalf of the Trustee, 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 one Business Day after the Servicer’s
receipt thereof, and shall thereafter deposit in the Collection Account, in
no
event more than two Business Days 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 subsequent to 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 related Cut-off Date
but allocable to a Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments, on the
related Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
related Mortgage Loan;
(iii) all
Insurance Proceeds and Condemnation Proceeds (to the extent such Insurance
Proceeds and Condemnation Proceeds are not to be applied to the restoration
of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the express requirements of law or in accordance with prudent
and customary servicing practices) and all Liquidation Proceeds with respect
to
the related Mortgage Loans other than proceeds to be applied to the restoration
or repair of the Mortgaged Property or released to either the Mortgagor or
the
holder of a senior lien on the Mortgaged Property in accordance with the
Servicer’s normal servicing procedures;
(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 3.13(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any related Mortgage Loan repurchased or purchased in accordance
with this Agreement and any Substitution Adjustment Amount; and
(vii) all
Prepayment Premiums collected by the Servicer.
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, any payments in the nature of late payment charges, NSF fees,
reconveyance fees, assumption fees and other similar fees and charges need
not
be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. 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) 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
notice to the Trustee, the Certificate Insurer and the Depositor of the location
of the Collection Account maintained by it when established and prior to any
change thereof.
Section
3.11 Withdrawals
from the Collection Account. (a)
The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in
Section 4.01:
(i) on
or
prior to the Servicer Remittance Date, to remit to the Trustee all Available
Funds in respect of the related Distribution Date together with all amounts
representing Prepayment Premiums from the related Mortgage Loans received during
the related Prepayment Period;
(ii) to
reimburse the Servicer for P&I Advances, but only to the extent of amounts
received which represent Late Collections (net of the related Servicing Fees)
of
Scheduled Payments on the related Mortgage Loans with respect to which such
P&I Advances were made in accordance with the provisions of
Section 4.01;
(iii) to
pay
the Servicer or any Subservicer (A) any unpaid related Servicing Fees
(including such unpaid related Servicing Fees as provided in Section 3.15)
or
(B) any unreimbursed Servicing Advances with respect to each related
Mortgage Loan serviced by the Servicer, but only to the extent of any Late
Collections, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or
other amounts as may be collected by the Servicer from a Mortgagor, or otherwise
received with respect to such related Mortgage Loan (or the related REO
Property);
(iv) to
pay to
the Servicer as servicing compensation (in addition to the related Servicing
Fee) on the Servicer Remittance Date any interest or investment income earned
on
funds deposited in the Collection Account;
(v) to
pay
the Responsible Party or the Purchaser, as applicable, with respect to each
related Mortgage Loan that has previously been repurchased or replaced pursuant
to this Agreement all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to
reimburse the Servicer for (A) any P&I Advance or Servicing Advance
previously made which the Servicer has determined to be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance in accordance with the provisions
of
Section 4.01, (B) any P&I Advance or Servicing Advance previously made
with respect to a delinquent Mortgage Loan which Mortgage Loan has been modified
by the Servicer in accordance with the terms of this Agreement; provided that
the Servicer shall only reimburse itself for such P&I Advances and Servicing
Advances at the time of such modification and shall reimburse itself after
such
modification only as otherwise permitted under the other clauses of this Section
3.11(a), and (C) any unpaid related Servicing Fees to the extent not
recoverable from Liquidation Proceeds, Insurance Proceeds or other amounts
received with respect to the related Mortgage Loan under Section 3.11(a)(iii)
or
upon termination of the obligation of the Servicer;
(vii) to
pay,
or to reimburse the Servicer for advances in respect of, expenses incurred
in
connection with any related Mortgage Loan serviced by the Servicer pursuant
to
Section 3.15;
(viii) to
reimburse the Servicer, the Depositor, the Certificate Insurer or the Trustee
for expenses incurred by or reimbursable to the Servicer, the Depositor, the
Certificate Insurer or the Trustee, as the case may be, pursuant to
Section 6.03, Section 7.02 or Section 8.05;
(ix) 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
repurchase obligation under Section 2.03 of this Agreement that were
included in the Repurchase Price of the related Mortgage Loan, including any
expenses arising out of the enforcement of the repurchase obligation, to the
extent not otherwise paid pursuant to the terms hereof;
(x) to
withdraw any amounts deposited in the Collection Account in error or for which
amounts previously deposited are returned due to a “not sufficient funds” or
other denial of payment by the related Mortgagor’s banking
institution;
(xi) to
withdraw any amounts held in the Collection Account and not required to be
remitted to the Trustee on the Servicer Remittance Date occurring in the month
in which such amounts are deposited into the Collection Account, to reimburse
the Servicer for xxxxxxxxxxxx X&X Advances;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
and
(xiii) to
clear
and terminate the Collection Account upon termination of this
Agreement.
To
the
extent that the Servicer does not timely make the remittance referred to in
clause (i) above, the Servicer shall pay the Trustee for the account of the
Trustee interest on any amount not timely remitted at the prime rate, from
and
including the applicable Servicer Remittance Date to but excluding the date
such
remittance is actually made.
(b) 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 (a)(ii), (iii), (v), (vi), (vii), (viii) and (ix) above. The
Servicer shall provide written notification to the Depositor, on or prior to
the
next succeeding Servicer Remittance Date, upon making any withdrawals from
the
Collection Account pursuant to subclauses (a)(vi) and (viii)
above.
Section
3.12 Investment
of Funds in the Collection Account and the Distribution Account.
(a)
The
Servicer may invest the funds in the Collection Account and the Trustee may
invest funds in the Distribution Account during the Trustee Float Period, and
shall (except during the Trustee Float Period), invest such funds in the
Distribution Account at the direction of the Depositor (for purposes of this
Section 3.12, each of the Collection Account and the Distribution Accounts
are referred to as an “Investment Account”), in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day on which such funds are required
to be
withdrawn from such account pursuant to this Agreement (except for investments
made at the Depositor’s direction, which shall mature no later than the Business
Day immediately preceding the date of required withdrawal). 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.
The
Trustee shall be entitled to sole possession (except with respect to investment
direction of funds held in the Collection Account and any income and gain
realized thereon in any Account other than the Distribution Account during
the
Trustee Float Period) 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. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trustee may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the 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 and any of the benefits
arising from such Collection Account, shall be for the benefit of the Servicer
and shall be subject to its withdrawal in the manner set forth in
Section 3.11. Any other benefit derived from the Collection Account
associated with the receipt, disbursement and accumulation of principal,
interest, hazard insurance, mortgage blanket insurance, and like sources, shall
accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. 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.
(c) All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Trustee, shall be for the benefit of the
Depositor (except for any income or gain realized from the investment of funds
on deposit in the Distribution Account during the Trustee Float Period, which
shall be for the benefit of the Trustee). The Depositor shall deposit in the
Distribution Account (except with respect to the Trustee Float Period, in which
case the Trustee shall deposit) 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.
(d) 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
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(e) The
Trustee or its Affiliates are permitted to receive additional 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.
(f) The
Trustee shall not be liable for the amount of any loss incurred with respect
of
any investment (except that during the Trustee Float Period, it will be
responsible for reimbursing the Trust for such loss) or lack of investment
of
funds held in any Investment Account or the Distribution Account if made in
accordance with this Section 3.12.
Section
3.13 Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage.
(a)
The
Servicer shall obtain and maintain a blanket policy insuring against losses
arising from fire and hazards on all of the related Mortgage Loans, which policy
shall provide coverage in an amount which is at least equal to the least of
(i) the outstanding principal balance of such Mortgage Loan, (ii) the
amount necessary to fully compensate for any damage or loss to the improvements
that are a part of such property on a replacement cost basis, (iii) the
maximum insurable value of the improvements which are a part of such Mortgaged
Property, and (iv) the amount determined by applicable federal or state
law, 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. Any amounts to be collected by the Servicer under any such
policy (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.
In
the
event that such policy contains a deductible clause, the Servicer shall, in
the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property a standard hazard insurance policy and there shall
have
been one or more losses which would have been covered by such policy, the
Servicer shall deposit to the Collection Account from its own funds the amount
that is not otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as administrator and
servicer of the related Mortgage Loans, the Servicer agrees to prepare and
present, on behalf of itself, and the Trustee claims under any such blanket
policy in a timely fashion in accordance with the terms of such
policy.
(b) 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 the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx if it were the purchaser of the Mortgage Loans, unless the Servicer
has obtained a waiver of such requirements from Xxxxxx Mae. The Servicer shall
also maintain a fidelity bond in the form and amount that would meet the
requirements of Xxxxxx Xxx, unless the Servicer has obtained a waiver of such
requirements from Xxxxxx Mae. The Servicer shall provide the Trustee and the
Certificate Insurer upon request with copies of any certificates of such
insurance policies and fidelity bond. 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 and the
Certificate Insurer. The Servicer shall also cause each Subservicer to maintain
a policy of insurance covering errors and omissions and a fidelity bond which
would meet such requirements.
Section
3.14 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 related Mortgage Loan under the
“due-on-sale” clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and 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 make commercially
reasonable efforts to 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 underwriting criteria of
the
Servicer and such substitution is in the best interest of the related
Certificateholders as determined by the Servicer. In connection with any
assumption, modification 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, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption, modification
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 Interest Rate and the amount of the Scheduled Payment) may be amended
or modified, except as otherwise required pursuant to the terms thereof or
as
otherwise permitted by this Agreement. The Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification 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 3.14, 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
3.15 Realization
upon Defaulted Mortgage Loans. (a)
The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such
of the related 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, and which are not released from this
Agreement pursuant to any other provision hereof. The Servicer shall use
reasonable efforts to realize upon such defaulted Mortgage Loans in such manner
as will maximize the receipt of principal and interest by the Trustee, taking
into account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which a 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 sole discretion (i) that such restoration
will increase the net proceeds of liquidation of the related Mortgage Loan
to
the Trustee, after reimbursement to itself for such expenses, and (ii) that
such expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in
Section 3.11.
In
the
event that the related First Lien Mortgage Loan is not being serviced by the
Servicer, the Servicer shall have no liability for any losses resulting from
a
foreclosure on a related Mortgage Loan in connection with the foreclosure on
the
related First Lien Mortgage Loan where the Servicer did not receive notice
or
otherwise had no actual knowledge regarding such foreclosure on the related
First Lien Mortgage Loan; provided, however, if the Servicer is either notified
or has actual knowledge that any holder of a First Lien Mortgage Loan intends
to
accelerate the obligations secured by the First Lien Mortgage Loan, or that
any
such holder intends to declare a default under the mortgage or promissory note
secured thereby, or has filed or intends to file an election to have the related
Mortgaged Property sold or foreclosed, the Servicer shall take, on behalf of
the
Trust, whatever actions are necessary to protect the interests of the Trust
in
accordance with Accepted Servicing Practices and the REMIC Provisions. The
Servicer shall not be required to make a Servicing Advance pursuant to Section
4.01 with respect thereto except to the extent that it determines in its
reasonable good faith judgment that such advance would be recoverable from
Liquidation Proceeds on the related Mortgage Loan and in no event in an amount
that is greater than the then outstanding principal balance of the related
Mortgage Loan and in no event for Mortgage Loans that are 180 days or more
Delinquent. The Servicer shall thereafter take such action as is reasonably
necessary to recover any amount so advanced and to otherwise reimburse itself
as
a Servicing Advance from the Collection Account pursuant to Section
3.11.
The
proceeds of any Liquidation Event or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds or any income from an REO Property, will be applied
in
the following order of priority: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances, pursuant to
Section 3.11 or 3.17; second, to reimburse the Servicer for any related
xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to accrued
and unpaid interest on the related Mortgage Loan or REO Imputed Interest, at
the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition,
or to
the Due Date prior to the Servicer Remittance Date on which such amounts are
to
be distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the related Mortgage Loan. If the
amount of the recovery so allocated to interest is less than a full recovery
thereof, that amount will be allocated as follows: first, to unpaid related
Servicing Fees; and second, as interest at the Mortgage Interest Rate (net
of
the related Servicing Fee Rate). The portion of the recovery so allocated to
unpaid related Servicing Fees shall be reimbursed to the Servicer or any
Subservicer pursuant to Section 3.11 or 3.17. The portions of any recovery
so allocated to interest at the Mortgage Interest Rate (net of the related
Servicing Fee Rate) and to principal of the related Mortgage Loan shall be
applied as follows: first, to reimburse the Servicer or any Subservicer for
any
related unreimbursed Servicing Advances in accordance with Section 3.11 or
3.17, and second, to the Trustee in accordance with the provisions of
Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
(b) With
respect to any Mortgage Loan that is 180 days delinquent, the Servicer will
determine, in its reasonable business judgment, whether a net recovery is
probable through foreclosure proceedings or other liquidation of the related
Mortgaged Property. If the Servicer determines that no such recovery is
probable, it shall charge off the related Mortgage Loan at the time it becomes
180 days delinquent. Once a Mortgage Loan has been charged off, the Servicer
will discontinue making P&I Advances, the Servicer will not be entitled to
any additional servicing compensation (except as provided below), and the
Charged Off Loan will give rise to a Realized Loss. If the Servicer reasonably
determines that such net recovery is possible through foreclosure proceedings
or
other liquidation of the related Mortgaged Property on a Mortgage Loan that
becomes 180 days delinquent, the Servicer need not charge off the Mortgage
Loan
and may continue making P&I Advances, and the Servicer will continue to be
entitled to its Servicing Fees on such Mortgage Loans.
Any
Mortgage Loan that is charged off, pursuant to the preceding paragraph, may
continue to be serviced by the Servicer using specialized collection procedures
(including foreclosure, if appropriate) to the extent the Servicer reasonably
believes that such procedures may result in future recoveries on such Mortgage
Loan. The Servicer will be entitled to Servicing Fees and reimbursement of
expenses in connection with such Mortgage Loans for which it is using
specialized collection procedures after the date of charge off, but only to
the
extent of funds available from any recoveries on any such Mortgage Loans for
which it is using specialized collection procedures. Any such Mortgage Loans
serviced in accordance with the specialized collection procedures shall be
serviced for approximately six months. Any net recoveries received on such
Mortgage Loans during such six month period will be treated as Subsequent
Recoveries. On the date which is six months after the date on which the Servicer
begins servicing such Mortgage Loans using the specialized collection
procedures, unless specific net recoveries are anticipated by the Servicer
on a
particular Mortgage Loan, such Charged Off Loan will be released from the Trust
Fund, will no longer be an asset of any Trust REMIC, and will be transferred
to
the Class X-1 Certificateholders, without recourse, and thereafter (i) the
Class
X-1 Certificateholder, as identified with contact information in writing to
the
Servicer by the Depositor, will be entitled to any amounts subsequently received
in respect of any such Released Loans, subject to the Servicer’s fees described
below, (ii) the Class X-1 Certificateholder may designate any servicer to
service any such Released Loan, (iii) the Class X-1 Certificateholder may sell
any such Released Loan to a third party and (iv) to the extent the servicing
of
such Charged Off Loan is not transferred from the Servicer, the Servicer shall
be entitled to servicing compensation for such Charged Off Loan in an amount
equal to forty percent (40%) of any amounts collected by the Servicer on such
Charged Off Loan. With respect to any Mortgage Loan that is charged off at
the
time it becomes 180 days delinquent, to the extent the Servicer does not begin
using specialized collection procedures with respect to such Mortgage Loan,
such
Mortgage Loan shall be governed by the preceding sentence at such
time.
(c) Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event an officer responsible
for foreclosures or default management of the Servicer has received actual
notice of, or has actual knowledge of the presence of, hazardous or toxic
substances or wastes on the related Mortgaged Property, or if the Depositor
or
the Trustee otherwise requests, the Servicer shall cause an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector. Upon completion of the inspection, the Servicer shall promptly
provide the Trustee and the Depositor, with a written report of the
environmental inspection.
After
reviewing the environmental inspection report, the Servicer shall determine
consistent with Accepted Servicing Practices, to proceed with respect to the
Mortgaged Property. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of
a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled
to
be reimbursed from amounts in the Collection Account pursuant to
Section 3.11. In the event the Servicer determines not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed from general collections for all related Servicing Advances made
with respect to the related Mortgaged Property from the Collection Account
pursuant to Section 3.11. The Trustee shall not be responsible for any
determination made by the Servicer pursuant to this paragraph or
otherwise.
Section
3.16 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, within five (5) Business Days of the payment
in full, notify the Trustee by a certification (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 delivery to it of the
Custodial File by completing a Request for Release to the Trustee. Upon receipt
of such certification and Request for Release, the Trustee shall promptly
release the related Custodial File to the Servicer within five (5) Business
Days. No expenses incurred in connection with any instrument of satisfaction
or
deed of reconveyance shall be chargeable to or reimbursed by the Collection
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 Trustee shall, upon request of the Servicer
and delivery to the Trustee of a Request for Release, release the related
Custodial File to the Servicer, and the Trustee shall, at the direction of
the
Servicer, execute such documents provided to it as shall be necessary to the
prosecution of any such proceedings and the Servicer shall retain the Mortgage
File in trust for the benefit of the Trustee. Such Request for Release shall
obligate the Servicer to return each and every document previously requested
from the Custodial File to the Trustee 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 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 Trustee
to
the Servicer or its designee. Upon receipt of a Request for Release under this
Section 3.16, the Trustee shall deliver the related Custodial File to the
requesting Servicer within five (5) Business Days by overnight courier (at
the
Servicer’s expense, which expense shall be reimbursable as a Servicing
Advance.
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer copies of 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, or shall
execute and deliver to the Servicer a power of attorney in the form of Exhibit
P
sufficient to authorize the Servicer to execute such documents on its behalf.
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
3.17 Title,
Conservation and Disposition of REO Property. (a)
This
Section shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name
of
the Trustee on behalf of the related Certificateholders and the Certificate
Insurer or the Trustee’s nominee, which nominee shall not be the
Servicer.
(b) The
Servicer shall manage, conserve, protect and operate each REO Property for
the Trustee solely for the purpose of its prompt disposition and sale. The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Trustee and the Certificate Insurer.
(c) As
described in paragraph (h) below, the Servicer shall use Accepted Servicing
Practices to dispose of the REO Property as soon as possible and shall sell
such
REO Property in any event within three years after title has been taken to
such
REO Property, unless the Servicer determines, and gives an appropriate
notice to the Trustee and the Certificate Insurer to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. The
Trustee has no obligation with respect to REO Dispositions.
(d) 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 deposit such funds in the Collection
Account.
(e) The
Servicer shall deposit net of reimbursement to the Servicer for any related
outstanding Servicing Advances and unpaid Servicing Fees as provided in
Section 3.11, or cause to be deposited, on a daily basis in the Collection
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
(f) The
Servicer, upon an REO Disposition, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances as well as any unpaid related Servicing
Fees from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(g) Any
net
proceeds from an REO Disposition which are in excess of the unpaid principal
balance of the related Mortgage Loan plus all unpaid REO Imputed Interest
thereon through the date of the REO Disposition shall be retained by the
Servicer as additional servicing compensation.
(h) The
Servicer shall use Accepted Servicing Practices to sell, or cause the
Subservicer to sell, in accordance with Accepted Servicing Practices, any REO
Property as soon as possible, but in no event later than the conclusion of
the
third calendar year beginning after the year of its acquisition by the related
REMIC unless (i) the Servicer applies for an extension of such period from
the Internal Revenue Service pursuant to the REMIC Provisions and Code
Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period pursuant to the requirements of Section
3.17(c), or (ii) the Servicer obtains for the Trustee and the Certificate
Insurer an Opinion of Counsel, addressed to the Depositor, the Trustee, the
Certificate Insurer and the Servicer, to the effect that the holding by REMIC
I
or REMIC II of such REO Property subsequent to such period will not result
in
the imposition of taxes on “prohibited transactions” as defined in
Section 860F of the Code or cause any Trust REMIC to fail to qualify as a
REMIC under the REMIC Provisions or comparable provisions of relevant state
laws
at any time. The Servicer shall manage, conserve, protect and operate each
REO
Property serviced by the Servicer for the Trustee 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) or result in the receipt by REMIC I 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 Section 860G(a)(1) of the Code. Pursuant to its efforts to sell such
REO Property, the Servicer shall either itself or through an agent selected
by
the Servicer protect and conserve such REO Property in the same manner and
to such extent as is customary in the locality where such REO Property is
located and may, incident to its conservation and protection of the interests
of
the Trustee on behalf of the related Certificateholders and the Certificate
Insurer, rent the same, or any part thereof, as the Servicer deems to be in
the
best interest of the Trustee on behalf of the Certificateholders and the
Certificate Insurer for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as “rents from real property” as defined in
Section 856(d) of the Code.
Section
3.18 [Reserved].
Section
3.19 Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Servicer shall provide, or cause the applicable Subservicer to provide, to
the
Depositor, the Certificate Insurer and the Trustee, the OTS or the FDIC and
the
examiners and supervisory agents thereof, access to the documentation regarding
the related Mortgage Loans in its possession required by applicable regulations
of the OTS. Such access shall be afforded without charge, but only upon 15
days’
(or, if an Event of Default has occurred and is continuing, 3 Business Days’)
prior written request and during normal business hours at the offices of the
Servicer. Nothing in this Section 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.
Nothing
in this Section 3.19 shall require the Servicer or Subservicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement
of
the costs thereof. In addition, subject to limitations of applicable privacy
laws, the Servicer or Subservicer may make public information regarding the
performance of the related Mortgage Loans.
Section
3.20 Documents,
Records and Funds in Possession of the Servicer to Be Held for the
Trustee.
The
Servicer shall account fully to the Trustee for any funds received by the
Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any related
Mortgage Loan. All Mortgage Files and funds collected or held by, or under
the
control of, the Servicer in respect of any related Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds,
including, but not limited to, any funds on deposit in the Collection Account,
shall be held by the Servicer for and on behalf of the Trustee and shall be
and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Collection Account, the Distribution Account or any funds that otherwise are
or
may become due or payable to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert
by
legal action or otherwise any claim or right of setoff against any Mortgage
File
or any funds collected on, or in connection with, a related Mortgage Loan,
except, however, that the Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to
the
Servicer under this Agreement.
Section
3.21 Servicing
Compensation. (a)
As
compensation for its activities hereunder, the Servicer shall, with respect
to
each Mortgage Loan, be entitled to retain from deposits to the Collection
Account and from Liquidation Proceeds, Insurance Proceeds, and Condemnation
Proceeds related to such Mortgage Loan, the related Servicing Fee with respect
to each related Mortgage Loan (less any portion of such amounts retained by
any
Subservicer). In addition, the Servicer shall be entitled to recover unpaid
related Servicing Fees out of related Late Collections and as otherwise
permitted in Section 3.11. The right to receive the related Servicing Fee
may not be transferred in whole or in part except as provided in Section 6.04
or
in connection with the transfer of all of the Servicer’s responsibilities and
obligations under this Agreement; provided, however, that the Servicer may
pay
from the related Servicing Fee any amounts due to a Subservicer pursuant to
a
Subservicing Agreement entered into under Section 3.02.
(b) Additional
servicing compensation in the form of assumption or modification fees, late
payment charges, NSF fees, reconveyance fees and other similar fees, charges
(other than Prepayment Premiums) and net proceeds from an REO Disposition as
provided in Section 3.17(g) shall be retained by the Servicer 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, as additional servicing compensation, interest or other income earned
on deposits therein and also shall be entitled to any other benefits arising
from such account.
(c) Except
as
otherwise provided in this Agreement, the Servicer shall be required to pay
all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.13, servicing compensation of the Subservicer
to the extent not retained by it and the fees and expenses of independent
accountants and any agents appointed by the Servicer), and shall not be entitled
to reimbursement therefor except as specifically provided in
Section 3.11.
(d) Without
limiting the generality of the foregoing, the Servicer shall not be entitled
to
receive the Servicing Fee on any Mortgage Loans that became Charged Off Mortgage
Loans that are not discharged from the Trust for the period following the date
of such charge off, provided,
however,
that
the Servicing Fee shall accrue on such Mortgage Loans during such period, and
the Servicing Fee shall be paid to the Servicer if amounts due on such Mortgage
Loans in the aggregate are collected.
Section
3.22 Annual
Statement as to Compliance.
The
Servicer shall deliver or cause to be delivered to the Depositor and the
Trustee, on or before March 15 of each calendar year beginning in 2008, an
Officers’ Certificate (an “Annual Statement of Compliance”) stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer during
the preceding calendar year and of its performance under this Agreement has
been
made under such officers’ 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 year,
or, if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status thereof. The obligations of the Servicer under this Section apply to
the
Servicer that serviced a Mortgage Loan during the applicable period, whether
or
not the Servicer is acting as a servicer at the time such Officer’s Certificate
is required to be delivered. The Servicer shall deliver a similar Annual
Statement of Compliance by any Subservicer to which the Servicer has delegated
any servicing responsibilities with respect to the related Mortgage Loans
(unless a Form 15 Suspension Notice shall have been filed with respect to the
Trust Fund and so long as the Trust Fund is subject to the Exchange Act
reporting requirements), to the Depositor and the Trustee as described above
as
and when required with respect to the Servicer.
Section
3.23 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 Depositor and the Trustee
on or
before March 15 of each calendar year beginning in 2008, a report regarding
such
party’s assessment of compliance (an “Assessment of Compliance”) with the
Servicing Criteria during the preceding calendar year. As set forth in
Regulation AB, the Assessment of Compliance must contain the
following:
(a) A
statement by the party making the assessment of its responsibility for assessing
compliance with the Servicing Criteria applicable to it;
(b) A
statement by the party making the assessment that it used the Servicing Criteria
attached as Exhibit R hereto, and which will also be attached to the Assessment
of Compliance, to assess compliance with the Servicing Criteria applicable
to
it;
(c) An
assessment by such officer of the party making the assessment’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 party, that are backed by the same asset type
as
the related Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the party making the assessment’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 party making the assessment, which statement shall be based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the party, that are backed by the same asset type
as
the related Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit R hereto which are indicated as applicable to the party.
On
or
before March 15 of each calendar year beginning in 2008, the party making the
assessment shall furnish to the Depositor and the Trustee a report (an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the party making the
assessment, as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item
1122(b) of Regulation AB, which Attestation Report must be made in accordance
with standards for attestation reports issued or adopted by the Public Company
Accounting Oversight Board.
Unless
a
Form 15 Suspension Notice shall have been filed with respect to the Trust Fund
and for so long as the Trust Fund is subject to the Exchange Act reporting
requirements, the Servicer shall cause any Subservicer to which the Servicer
delegated any of its responsibilities with respect to the related Mortgage
Loans
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 Subservicer to which the Servicer delegated
any of its responsibilities with respect to the related Mortgage Loans, shall
at
a minimum address each of the Servicing Criteria specified on Exhibit R hereto
which are indicated as applicable to any “primary servicer” to the extent they
are applicable to such Subservicer. Notwithstanding the foregoing, as to any
subcontractor, 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.
The
Trustee (in its capacity as custodian) shall also provide to the Depositor
an
Assessment of Compliance and Attestation Report with respect to itself, as
and
when provided above by March 15 each year, unless a Form 15 Suspension Notice
shall have been filed with respect to the Trust Fund, which shall at a minimum
address each of the Servicing Criteria specified on Exhibit R hereto which
are
indicated as applicable to the “trustee”.
Section
3.24 Trustee
to Act as Servicer.
(a)
In the
event that the Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Trustee or its successor
shall
thereupon assume all of the rights and obligations of the Servicer hereunder
arising thereafter with respect to the related Mortgage Loans (except that
the
Trustee shall not be (i) liable for losses of the predecessor servicer
pursuant to Section 3.10 or any acts or omissions of the predecessor
servicer hereunder, (ii) obligated to make Advances if it is prohibited
from doing so by applicable law, (iii) obligated to effectuate repurchases
or substitutions of the related Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section 2.03
or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to
Section 7.02.
(b) Every
Subservicing Agreement entered into by the Servicer shall contain a provision
giving the successor servicer the option to terminate such agreement in the
event a successor servicer is appointed.
(c) If
the
Servicer shall for any reason no longer be the servicer (including by reason
of
any Event of Default), the Trustee (with respect to the Mortgage Loans) (or
any
other successor servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any Subservicing Agreement in accordance
with
the terms thereof; provided, that the Trustee (or any other successor servicer),
shall not incur any liability or have any obligations in its capacity as
successor servicer under a Subservicing Agreement arising prior to the date
of
such succession unless it expressly elects to succeed to the rights and
obligations of the Servicer thereunder; and the Servicer shall not thereby
be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The
Servicer shall, upon request of the Trustee, but at the expense of the Servicer,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement (if any) to which it is a party and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of such Subservicing Agreement to the assuming party.
Section
3.25 Compensating
Interest.
The
Servicer shall remit to the Trustee on the Servicer Remittance Date an amount
from its own funds equal to Compensating Interest with respect to the related
Mortgage Loans payable by the Servicer for such Servicer Remittance
Date.
Section
3.26 Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a)
With
respect to each related Mortgage Loan, the Servicer shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
Mortgagor credit files to Equifax, Experian and TransUnion Credit Information
Company (three of the national credit repositories), on a monthly
basis,
except
for those instances in which the Servicer believes it prudent to not report
for
the prevention or resolution of disputes with the Mortgagors.
(b) The
Servicer shall comply with all provisions of the Privacy Laws relating to the
related Mortgage Loans, the related borrowers and any “nonpublic personal
information” (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect
such
nonpublic personal information and providing all privacy notices required by
the
Privacy Laws.
Section
3.27 Excess
Reserve Fund Accounts; Distribution Accounts. (a)
The
Trustee shall establish and maintain the Excess Reserve Fund Account on behalf
of the Class X Certificateholders to receive any Basis Risk Payment and to
pay
to the Certificateholders any Basis Risk Carry Forward Amounts.
On
each
Distribution Date on which there exists a Basis Risk Carry Forward Amount on
any
Class of related Certificates after, if applicable, application of any
payments from the Supplemental Interest Trust, the Trustee shall
(1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(H), the lesser
of the Class X Distributable Amount (to the extent remaining after the
distributions specified in Sections 4.02(a)(iii)(A)-(G), and the aggregate
related Basis Risk Carry Forward Amount and (2) withdraw from the Excess
Reserve Fund Account amounts necessary to pay to such Class or Classes of
related Certificates the applicable Basis Risk Carry Forward Amounts. Such
payments shall be allocated to those Classes based upon the amount of Basis
Risk
Carry Forward Amount owed to each such Class and shall be paid in the priority
set forth in Sections 4.02(a)(iii)(I). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled
to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for
distribution.
The
Trustee shall account each Excess Reserve Fund Account as an outside reserve
fund within the meaning of Treasury Regulations Section 1.860G-2(h) and not
as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred
by
REMIC I to the Excess Reserve Fund Account shall be treated as first distributed
by the Trustee to the Class X Certificateholders, and then contributed by the
Class X Certificateholders to the Excess Reserve Fund Account.
Any
Basis
Risk Carry Forward Amounts (that are not paid out of Net Swap Receipts, if
applicable) paid by the Trustee to the related Certificateholders shall be
accounted for by the Trustee as amounts paid first to the Holders of the Class
X
Certificates and then to the respective Class or Classes of related
Certificates. In addition, the Trustee shall account for the rights of Holders
of each Class of related Certificates to receive payments of Basis Risk Carry
Forward Amounts as rights in a separate limited recourse interest rate cap
contract written by the Class X Certificateholders in favor of Holders of each
such Class.
Notwithstanding
any provision contained in this Agreement, the Trustee shall not be required
to
make any payments from the Excess Reserve Fund Account except as expressly
set
forth in this Section 3.27(a).
(b) The
Trustee shall establish and maintain the Distribution Account on behalf of
the
related Certificateholders and the Certificate Insurer. The Trustee shall,
promptly upon receipt on the Business Day received, deposit in the Distribution
Account and retain therein the following:
(i) the
aggregate amount remitted by the Servicer to the Trustee pursuant to
Section 3.11;
(ii) any
amount deposited by the Servicer pursuant to Section 3.12(b) in connection
with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that the Servicer shall remit any amount not required to be remitted,
the
Servicer may at any time direct the Trustee in writing to withdraw such amount
from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice to
the
Trustee which describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the related Certificateholders and the Certificate Insurer
until disbursed in accordance with this Agreement or withdrawn in accordance
with Section 4.02.
(c) In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, 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 party’s complete
name, address, tax identification number and such other identifying information,
together with copies of such party’s constituting documentation, securities
disclosure documentation and such other identifying documentation as may be
available for such party.
Section
3.28 Optional
Purchase of Delinquent Mortgage Loans.
The
Depositor (or its assignee), in its sole discretion, shall have the option,
but
shall not be obligated, to purchase any 90+ Delinquent Mortgage Loan from the
Trust Fund. The purchase price for any such Mortgage Loan shall be 100% of
the
unpaid principal balance of such Mortgage Loan plus accrued and unpaid interest
on the related Mortgage Loan at the applicable Mortgage Interest Rate, plus
the
amount of any unreimbursed Servicing Advances made by the Servicer. Upon receipt
of such purchase price, the Servicer shall provide to the Trustee a Request
for
Release and the Trustee shall promptly release to the Depositor the Mortgage
File relating to the Mortgage Loan being repurchased.
Section
3.29 Subordination
Liens.
In
connection with any governmental program under which a Mortgagor may obtain
a
benefit in the event the related Mortgaged Property is subject to a disaster
provided that the Mortgagor files a covenant or other lien against the Mortgaged
Property and is required to obtain the subordination thereto of the Mortgage,
the Servicer may cause such subordination to be executed and filed provided
that
either (i) the related Mortgage Loan is in default or default with respect
to
such Mortgage Loan is imminent or (ii) such subordination and participation
in
such governmental program will not result in a change in payment expectations
with respect to such Mortgage Loans. For purposes of the preceding sentence,
a
change in payment expectations occurs if, as a result of such subordination
and
participation in such governmental program, (1) there is a substantial
enhancement of the Mortgagor’s capacity to meet the payment obligations under
the related Mortgage Loan and that capacity was primarily speculative prior
to
such subordination and participation in such governmental program and is
adequate after such subordination and participation in such governmental program
or (2) there is a substantial impairment of the Mortgagor’s capacity to meet the
payment obligations under the related Mortgage Loan and that capacity was
adequate prior to such subordination and participation in such governmental
program and is primarily speculative after such subordination and participation
in such governmental program.
Section
3.30 Advisory
Agreement.
The
Servicer may enter into a special servicing advisory agreement with a Holder
of
the Class X Certificates and/or one or more other class of subordinated
certificates and/or an advisor designated by the Holder of the Class X
Certificates. Pursuant to such agreement, the Servicer may provide such Holder
or advisor, in its capacity as special servicing advisor, with loan-level
information with respect to the related Mortgage Loans, and the Holder of the
Class X Certificates or the special servicing advisor designated by the Holder
of the Class X Certificates may advise the Servicer with respect to the
commencement of foreclosure proceedings or other actions to liquidate such
Mortgage Loans and/or any other efforts to maximize recoveries with respect
to
such Mortgage Loans.
Section
3.31 High
Cost Mortgage Loans.
In
the
event that the Servicer reasonably determines that a Mortgage Loan may be a
High
Cost Mortgage Loan, the Servicer shall promptly notify the Depositor, the
Certificate Insurer and the Trustee (provided, however, that any failure to
provide such notification shall not constitute a breach under this Agreement),
and if the Servicer so notifies such parties, the Servicer may cease its
initiation of collection efforts thereon, and such determination shall be deemed
to materially and adversely affect the interests of the related
Certificateholders and the Certificate Insurer in such Mortgage Loan and the
Responsible Party or the Purchaser, as applicable, will repurchase the related
Mortgage Loan within a period and in the manner prescribed in the related
Responsible Party Agreement or the Representation and Warranties
Agreement.
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE SERVICERS
Section
4.01 Advances.
(a)
The
amount of P&I Advances to be made by the Servicer for any Servicer
Remittance Date shall equal, subject to Section 4.01(d), the sum of
(i) the aggregate amount of Scheduled Payments (with each interest portion
thereof net of the related Servicing Fee), due during the Due Period immediately
preceding such Servicer Remittance Date in respect of the related Mortgage
Loans, which Scheduled Payments were not received as of the close of business
on
the related Determination Date, (ii) with respect to each Mortgage Loan that
required a balloon payment on its final Due Date, a payment equal to the assumed
monthly payment that would have been due on the related Due Date based upon
the
original principal amortization schedule for such balloon mortgage loan, and
(iii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with REO
Imputed Interest) that would have been due on the related Due Date in respect
of
the related Mortgage Loan, over the net income from such REO Property
transferred to the Collection Account for distribution on such Servicer
Remittance Date; provided however that no P&I Advance shall be required to
be made (a) for any Mortgage Loan 180 days or more Delinquent, (b) with respect
to Relief Act Interest Shortfalls or (c) resulting from bankruptcy proceedings
of the Mortgagor.
(b) On
each
Servicer Remittance Date, the Servicer shall remit in immediately available
funds to the Trustee an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the related Mortgage Loans and REO
Properties for the Servicer Remittance Date either (i) from its own funds
or (ii) from the Collection Account, to the extent of funds held therein
for future distribution (in which case, it will cause to be made an appropriate
entry in the records of the Collection Account that Amounts Held for Future
Distribution have been, as permitted by this Section 4.01, used by the
Servicer in discharge of any such P&I Advance) or (iii) in the form of
any combination of (i) and (ii) aggregating the total amount of P&I Advances
to be made by the Servicer with respect to the related Mortgage Loans and REO
Properties. Any Amounts Held for Future Distribution and so used 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 required.
(c) The
obligation of the Servicer to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any related Mortgage Loan or REO Property, shall continue
through the time at which the related Mortgage Loan becomes 180 days
delinquent.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by the Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. The determination by the Servicer that it
has
made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or
that any proposed P&I Advance or Servicing Advance, if made, would
constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance, respectively, shall be evidenced by an Officer’s Certificate of the
Servicer delivered to the Trustee. In addition the Servicer shall not be
required to make any P&I Advances resulting from bankruptcy proceedings of
the Mortgagor or to advance any Relief Act Interest Shortfalls.
(e) Except
as
otherwise provided herein, the Servicer shall be entitled to reimbursement
pursuant to Section 3.11 for Advances from recoveries from the related
Mortgagor or from all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to the
related Mortgage Loan.
Section
4.02 Priorities
of Distribution.
(a)
On each
Distribution Date, the Trustee shall make the disbursements and transfers from
amounts relating to the Certificates then on deposit in the Distribution Account
in the following order of priority and to the extent of the Available Funds
remaining:
(i) to
the
Certificate Insurer, the Supplemental Interest Trust Account and to the Holders
of each Class of Offered Certificates and the Class M-6 Certificates, from
the
Interest Remittance Amount, in the following order of priority:
(A) to
the
Supplemental Interest Trust Account, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment owed to the Swap Provider other than a
Defaulted Swap Termination Payment owed to the Swap Provider, if
any;
(B) from
any
remaining Interest Remittance Amount, to the Certificate Insurer, the related
Premium for that Distribution Date;
(C) from
any
remaining Interest Remittance Amount, to the Class A Certificates, the Accrued
Certificate Interest Distribution Amount for such Class and Unpaid Interest
Amounts for such Class and such Distribution Date;
(D) from
any
remaining Interest Remittance Amount, to the Certificate Insurer for prior
draws
(including applicable interest) on the Policy;
(E) from
any
remaining Interest Remittance Amount, to the Class M-1 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;
(F) from
any
remaining Interest Remittance Amount, to the Class M-2 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;