▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.,
Depositor
▇▇▇▇▇ FARGO BANK, N.A.,
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2007
---------
Mortgage Pass-Through Certificates, MANA Series 2007-A3
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 14
Section 1.02 Accounting............................................ 67
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................. 68
Section 2.01 Conveyance of Mortgage Loans to Trustee............... 68
Section 2.02 Acceptance of Mortgage Loans by Trustee............... 71
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement............................................. 74
Section 2.04 Substitution of Mortgage Loans........................ 75
Section 2.05 Issuance of Certificates.............................. 76
Section 2.06 Representations and Warranties Concerning the
Depositor............................................. 76
Section 2.07 Representations and Warranties Concerning the Master
Servicer and Securities Administrator................. 77
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 79
Section 3.01 Master Servicer....................................... 79
Section 3.02 REMIC-Related Covenants............................... 80
Section 3.03 Monitoring of Servicers............................... 80
Section 3.04 Fidelity Bond......................................... 81
Section 3.05 Power to Act; Procedures.............................. 81
Section 3.06 Due-on-Sale Clauses; Assumption Agreements............ 82
Section 3.07 Release of Mortgage Files............................. 82
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee....................... 83
Section 3.09 Standard Hazard Insurance and Flood Insurance
Policies.............................................. 84
Section 3.10 Presentment of Claims and Collection of Proceeds...... 85
Section 3.11 Maintenance of the Primary Mortgage Insurance
Policies.............................................. 85
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents................................ 85
Section 3.13 Realization Upon Defaulted Mortgage Loans............. 86
Section 3.14 Compensation for the Master Servicer.................. 86
Section 3.15 REO Property.......................................... 86
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(continued)
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Section 3.16 Annual Statement as to Compliance..................... 87
Section 3.17 Reports on Assessment of Compliance and Attestation... 88
Section 3.18 Periodic Filings...................................... 91
Section 3.19 Compliance with Regulation AB......................... 97
Section 3.20 Servicing Rights Owner................................ 98
Section 3.21 Rights of the NIMs Insurer............................ 98
ARTICLE IV ACCOUNTS...................................................... 98
Section 4.01 Protected Accounts.................................... 98
Section 4.02 Master Servicer Collection Account.................... 100
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account........................... 101
Section 4.04 Distribution Account.................................. 102
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.................................. 102
ARTICLE V CERTIFICATES................................................... 104
Section 5.01 The Certificates...................................... 104
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.............................. 105
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..... 109
Section 5.04 Persons Deemed Owners................................. 109
Section 5.05 Access to List of Certificateholders' Names and
Addresses............................................. 110
Section 5.06 Book-Entry Certificates............................... 110
Section 5.07 Notices to Depository................................. 111
Section 5.08 Definitive Certificates............................... 111
Section 5.09 Maintenance of Office or Agency....................... 112
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS................................ 112
Section 6.01 Distributions on the Certificates..................... 112
Section 6.02 Distributions......................................... 123
Section 6.03 Statements to Certificateholders...................... 123
Section 6.04 Monthly Advances...................................... 126
Section 6.05 Compensating Interest Payments........................ 127
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR........................ 128
Section 7.01 Liabilities of the Master Servicer.................... 128
Section 7.02 Merger or Consolidation of the Master Servicer........ 128
Section 7.03 Indemnification from the Master Servicer and the
Depositor............................................. 128
Section 7.04 Limitations on Liability of the Master Servicer and
Others................................................ 129
Section 7.05 Master Servicer Not to Resign......................... 130
Section 7.06 Successor Master Servicer............................. 130
Section 7.07 Sale and Assignment of Master Servicing............... 130
ARTICLE VIII DEFAULT..................................................... 131
Section 8.01 Events of Default..................................... 131
Section 8.02 Trustee to Act; Appointment of Successor.............. 133
Section 8.03 Notification to Certificateholders.................... 134
Section 8.04 Waiver of Defaults.................................... 134
Section 8.05 List of Certificateholders............................ 134
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR....... 134
Section 9.01 Duties of Trustee..................................... 134
Section 9.02 Certain Matters Affecting the Trustee and the
Securities Administrator.............................. 137
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans........................ 139
Section 9.04 Trustee and Securities Administrator May Own
Certificates.......................................... 139
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses.............................................. 140
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator......................................... 140
Section 9.07 Insurance............................................. 141
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator......................................... 141
Section 9.09 Successor Trustee and Successor Securities
Administrator......................................... 142
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator......................................... 142
Section 9.11 Appointment of Co-Trustee or Separate Trustee......... 143
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TABLE OF CONTENTS
(continued)
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Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration.............. 144
ARTICLE X TERMINATION.................................................... 153
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans........................................ 153
Section 10.02 Final Distribution on the Certificates................ 154
Section 10.03 Additional Termination Requirements................... 155
ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 156
Section 11.01 Intent of Parties..................................... 156
Section 11.02 Amendment............................................. 156
Section 11.03 Recordation of Agreement.............................. 158
Section 11.04 Limitation on Rights of Certificateholders............ 158
Section 11.05 Acts of Certificateholders............................ 159
Section 11.06 Governing Law......................................... 160
Section 11.07 Notices............................................... 160
Section 11.08 Severability of Provisions............................ 161
Section 11.09 Successors and Assigns................................ 161
Section 11.10 Article and Section Headings.......................... 161
Section 11.11 Counterparts.......................................... 161
Section 11.12 Notice to Rating Agencies............................. 161
Section 11.13 Third Party Rights.................................... 162
Section 11.14 Additional Rights of the NIMs Insurer................. 162
Section 11.15 Additional Rights of the NIMs Insurer................. 162
ARTICLE XII PROHIBITED TRANSACTIONS...................................... 162
Section 12.01 [Reserved]............................................ 163
Section 12.02 Prohibited Transactions and Activities................ 163
Section 12.03 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.................. 163
Section 12.04 REO Property.......................................... 163
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TABLE OF CONTENTS
(continued)
PAGE
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EXHIBITS
Exhibit A-1 - Form of Class A Certificates and Class M
Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class R Certificate
Exhibit A-4 - Form of Class P Certificate
Exhibit A-5 - Form of Class C Certificate
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transferee's Letter
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G-1 - Form of Custodial Agreement - ▇▇▇▇▇ Fargo Bank,
N.A.
Exhibit G-2 - Form of Custodial Agreement - Deutsche Bank
National Trust Company
Exhibit H-1 - Class A-1 One-Month LIBOR Corridor Table
Exhibit H-2 - Class A-2 One-Month LIBOR Corridor Table
Exhibit H-3 - Subordinate Certificate One-Month LIBOR
Corridor Table
Exhibit I-1 to I-4 - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Servicing Criteria To Be Addressed in Assessment
of Compliance
Exhibit L - Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
Exhibit M - Form of Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
Exhibit N-1 - Form of Class A-1 Corridor Contract
Exhibit N-2 - Form of Class A-2 Corridor Contract
Exhibit N-3 - Form of Subordinate Certificate Corridor Contract
Exhibit O - Additional Disclosure Notification
Exhibit P - Form of Item 1123 Certification of Servicer
Exhibit Q-1 - Additional Form 10-D Disclosure
Exhibit Q-2 - Additional Form 10-K Disclosure
Exhibit Q-3 - Form 8-K Disclosure Information
Exhibit R - Form of Swap Agreement
-v-
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated as of April 1, 2007 (this
"Agreement" or this "Pooling and Servicing Agreement") among ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE INVESTORS, INC., as depositor (the "Depositor"), ▇▇▇▇▇ FARGO BANK,
N.A., as master servicer (in such capacity, the "Master Servicer") and as
securities administrator (in such capacity, the "Securities Administrator"), and
HSBC BANK USA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Sponsor and at the
Closing Date is the owner of the Mortgage Loans and the other related property
being conveyed by the Depositor to the Trustee hereunder on behalf of the
Issuing Entity for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Securities Administrator as
consideration for the Depositor's transfer to the Issuing Entity of the Mortgage
Loans and the other related property constituting that portion of the Trust Fund
relating to the Certificates. The Depositor has duly authorized the execution
and delivery of this Agreement to provide for the conveyance to the Issuing
Entity of the Mortgage Loans and the other related property constituting the
portion of the Trust Fund relating to the Certificates. All covenants and
agreements made by the Sponsor in the Mortgage Loan Purchase Agreement and in
this Agreement and all covenants and agreements made by the Depositor, the
Trustee, the Securities Administrator and the Master Servicer herein with
respect to the Mortgage Loans and the other related property constituting that
portion of the Trust Fund relating to the Certificates are for the benefit of
the Holders from time to time of the Certificates and, to the extent provided
herein, the NIMs Insurer. The Depositor, the Trustee, the Securities
Administrator and the Master Servicer are entering into this Agreement, and the
Trustee on behalf of the Issuing Entity is accepting the Trust Fund created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
As provided herein, the Securities Administrator shall elect that the Trust
Fund be treated for federal income tax purposes as consisting of (i) three real
estate mortgage investment conduits, (ii) the right to receive payments
distributable to the Class P Certificates, (iii) each Corridor Contract and the
Corridor Contract Account, (iv) the grantor trusts described in Section 9.12
hereof and (v) the Supplemental Interest Trust, which in turn will hold the Swap
Agreement. The SWAP REMIC will consist of all of the assets constituting the
Trust Fund (other than the assets described in clauses (ii), (iii), (iv) and (v)
above, other than the SWAP REMIC Regular Interests and other than the Lower Tier
REMIC Regular Interests) and will be evidenced by the SWAP REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the SWAP REMIC) and the Class SWR Interest as the single "residual
interest" in the SWAP REMIC. The Lower Tier REMIC will consist of SWAP REMIC
Regular Interests and will be evidenced by the Lower Tier REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the Lower Tier REMIC) and the Class LTR Interest as the single
"residual interest" in the Lower Tier REMIC. The Trustee will hold the Lower
Tier REMIC Regular Interests. The Upper Tier REMIC will consist of the Lower
Tier REMIC Regular Interests and will be evidenced by the REMIC Regular
Interests (which will represent the "regular interests" in the Upper Tier REMIC)
and the Residual Interest as the single "residual interest" in the Upper Tier
REMIC. The Class R Certificate will
represent beneficial ownership of the Class SWR Interest, the Class LTR Interest
and the Residual Interest. The "latest possible maturity date" for federal
income tax purposes of all interests created hereby will be the Latest Possible
Maturity Date.
THE SWAP REMIC
The following table sets forth the designations, initial principal balances
and interest rates for each interest in the SWAP REMIC:
Class Initial Principal Balance Interest Rate
----- ------------------------- -------------
1-SW1 $38,710,472.156 (1)
1-SW1A $ 3,219,737.002 (2)
1-SW1B $ 3,219,737.002 (3)
1-SW2A $ 3,372,829.839 (2)
1-SW2B $ 3,372,829.839 (3)
1-SW3A $ 3,468,088.385 (2)
1-SW3B $ 3,468,088.385 (3)
1-SW4A $ 3,454,940.742 (2)
1-SW4B $ 3,454,940.742 (3)
1-SW5A $ 3,303,615.796 (2)
1-SW5B $ 3,303,615.796 (3)
1-SW6A $ 3,147,849.104 (2)
1-SW6B $ 3,147,849.104 (3)
1-SW7A $ 2,964,582.205 (2)
1-SW7B $ 2,964,582.205 (3)
1-SW8A $ 2,820,338.954 (2)
1-SW8B $ 2,820,338.954 (3)
1-SW9A $ 2,683,382.698 (2)
1-SW9B $ 2,683,382.698 (3)
1-SW10A $ 2,565,223.852 (2)
1-SW10B $ 2,565,223.852 (3)
1-SW11A $ 2,412,027.849 (2)
1-SW11B $ 2,412,027.849 (3)
1-SW12A $ 2,263,451.394 (2)
1-SW12B $ 2,263,451.394 (3)
1-SW13A $ 2,159,833.665 (2)
1-SW13B $ 2,159,833.665 (3)
1-SW14A $ 2,429,665.411 (2)
1-SW14B $ 2,429,665.411 (3)
1-SW15A $ 2,717,826.493 (2)
1-SW15B $ 2,717,826.493 (3)
1-SW16A $ 2,286,820.595 (2)
1-SW16B $ 2,286,820.595 (3)
1-SW17A $ 1,958,556.233 (2)
1-SW17B $ 1,958,556.233 (3)
-2-
1-SW18A $ 1,839,835.243 (2)
1-SW18B $ 1,839,835.243 (3)
1-SW19A $ 1,742,385.595 (2)
1-SW19B $ 1,742,385.595 (3)
1-SW20A $ 1,651,868.165 (2)
1-SW20B $ 1,651,868.165 (3)
1-SW21A $ 1,566,762.122 (2)
1-SW21B $ 1,566,762.122 (3)
1-SW22A $ 1,488,054.270 (2)
1-SW22B $ 1,488,054.270 (3)
1-SW23A $ 1,428,326.800 (2)
1-SW23B $ 1,428,326.800 (3)
1-SW24A $ 1,401,891.339 (2)
1-SW24B $ 1,401,891.339 (3)
1-SW25A $ 1,422,607.566 (2)
1-SW25B $ 1,422,607.566 (3)
1-SW26A $ 2,436,090.271 (2)
1-SW26B $ 2,436,090.271 (3)
1-SW27A $ 3,573,881.090 (2)
1-SW27B $ 3,573,881.090 (3)
1-SW28A $ 2,479,196.754 (2)
1-SW28B $ 2,479,196.754 (3)
1-SW29A $ 1,034,489.205 (2)
1-SW29B $ 1,034,489.205 (3)
1-SW30A $ 799,794.682 (2)
1-SW30B $ 799,794.682 (3)
1-SW31A $ 749,013.762 (2)
1-SW31B $ 749,013.762 (3)
1-SW32A $ 704,380.663 (2)
1-SW32B $ 704,380.663 (3)
1-SW33A $ 665,718.615 (2)
1-SW33B $ 665,718.615 (3)
1-SW34A $ 628,139.919 (2)
1-SW34B $ 628,139.919 (3)
1-SW35A $ 591,837.678 (2)
1-SW35B $ 591,837.678 (3)
1-SW36A $ 45,876.061 (2)
1-SW36B $ 45,876.061 (3)
1-SW37A $ 488,443.235 (2)
1-SW37B $ 488,443.235 (3)
1-SW38A $ 459,366.585 (2)
1-SW38B $ 459,366.585 (3)
1-SW39A $ 434,068.024 (2)
1-SW39B $ 434,068.024 (3)
1-SW40A $ 412,005.669 (2)
-3-
1-SW40B $ 412,005.669 (3)
1-SW41A $ 384,960.512 (2)
1-SW41B $ 384,960.512 (3)
1-SW42A $ 362,259.723 (2)
1-SW42B $ 362,259.723 (3)
1-SW43A $ 340,069.805 (2)
1-SW43B $ 340,069.805 (3)
1-SW44A $ 321,032.155 (2)
1-SW44B $ 321,032.155 (3)
1-SW45A $ 302,261.621 (2)
1-SW45B $ 302,261.621 (3)
1-SW46A $ 286,604.486 (2)
1-SW46B $ 286,604.486 (3)
1-SW47A $ 287,157.327 (2)
1-SW47B $ 287,157.327 (3)
1-SW48A $ 340,839.110 (2)
1-SW48B $ 340,839.110 (3)
1-SW49A $ 790,631.255 (2)
1-SW49B $ 790,631.255 (3)
1-SW50A $ 1,534,575.795 (2)
1-SW50B $ 1,534,575.795 (3)
1-SW51A $ 677,789.935 (2)
1-SW51B $ 677,789.935 (3)
1-SW52A $ 591,676.622 (2)
1-SW52B $ 591,676.622 (3)
2-SW2 $54,907,637.454 (4)
2-SW1A $ 4,566,933.498 (5)
2-SW1B $ 4,566,933.498 (6)
2-SW2A $ 4,784,083.161 (5)
2-SW2B $ 4,784,083.161 (6)
2-SW3A $ 4,919,199.615 (5)
2-SW3B $ 4,919,199.615 (6)
2-SW4A $ 4,900,550.758 (5)
2-SW4B $ 4,900,550.758 (6)
2-SW5A $ 4,685,908.704 (5)
2-SW5B $ 4,685,908.704 (6)
2-SW6A $ 4,464,966.396 (5)
2-SW6B $ 4,464,966.396 (6)
2-SW7A $ 4,205,017.295 (5)
2-SW7B $ 4,205,017.295 (6)
2-SW8A $ 4,000,420.046 (5)
2-SW8B $ 4,000,420.046 (6)
2-SW9A $ 3,806,158.802 (5)
2-SW9B $ 3,806,158.802 (6)
2-SW10A $ 3,638,560.148 (5)
-4-
2-SW10B $ 3,638,560.148 (6)
2-SW11A $ 3,421,264.151 (5)
2-SW11B $ 3,421,264.151 (6)
2-SW12A $ 3,210,520.606 (5)
2-SW12B $ 3,210,520.606 (6)
2-SW13A $ 3,063,547.335 (5)
2-SW13B $ 3,063,547.335 (6)
2-SW14A $ 3,446,281.589 (5)
2-SW14B $ 3,446,281.589 (6)
2-SW15A $ 3,855,014.507 (5)
2-SW15B $ 3,855,014.507 (6)
2-SW16A $ 3,243,667.905 (5)
2-SW16B $ 3,243,667.905 (6)
2-SW17A $ 2,778,051.767 (5)
2-SW17B $ 2,778,051.767 (6)
2-SW18A $ 2,609,655.757 (5)
2-SW18B $ 2,609,655.757 (6)
2-SW19A $ 2,471,431.405 (5)
2-SW19B $ 2,471,431.405 (6)
2-SW20A $ 2,343,039.835 (5)
2-SW20B $ 2,343,039.835 (6)
2-SW21A $ 2,222,323.878 (5)
2-SW21B $ 2,222,323.878 (6)
2-SW22A $ 2,110,683.230 (5)
2-SW22B $ 2,110,683.230 (6)
2-SW23A $ 2,025,964.700 (5)
2-SW23B $ 2,025,964.700 (6)
2-SW24A $ 1,988,468.161 (5)
2-SW24B $ 1,988,468.161 (6)
2-SW25A $ 2,017,852.434 (5)
2-SW25B $ 2,017,852.434 (6)
2-SW26A $ 3,455,394.729 (5)
2-SW26B $ 3,455,394.729 (6)
2-SW27A $ 5,069,257.910 (5)
2-SW27B $ 5,069,257.910 (6)
2-SW28A $ 3,516,537.746 (5)
2-SW28B $ 3,516,537.746 (6)
2-SW29A $ 1,467,338.295 (5)
2-SW29B $ 1,467,338.295 (6)
2-SW30A $ 1,134,443.318 (5)
2-SW30B $ 1,134,443.318 (6)
2-SW31A $ 1,062,414.738 (5)
2-SW31B $ 1,062,414.738 (6)
2-SW32A $ 999,106.337 (5)
2-SW32B $ 999,106.337 (6)
-5-
2-SW33A $ 944,267.385 (5)
2-SW33B $ 944,267.385 (6)
2-SW34A $ 890,965.081 (5)
2-SW34B $ 890,965.081 (6)
2-SW35A $ 839,473.322 (5)
2-SW35B $ 839,473.322 (6)
2-SW36A $ 65,071.439 (5)
2-SW36B $ 65,071.439 (6)
2-SW37A $ 692,816.765 (5)
2-SW37B $ 692,816.765 (6)
2-SW38A $ 651,573.915 (5)
2-SW38B $ 651,573.915 (6)
2-SW39A $ 615,689.976 (5)
2-SW39B $ 615,689.976 (6)
2-SW40A $ 584,396.331 (5)
2-SW40B $ 584,396.331 (6)
2-SW41A $ 546,034.988 (5)
2-SW41B $ 546,034.988 (6)
2-SW42A $ 513,835.777 (5)
2-SW42B $ 513,835.777 (6)
2-SW43A $ 482,361.195 (5)
2-SW43B $ 482,361.195 (6)
2-SW44A $ 455,357.845 (5)
2-SW44B $ 455,357.845 (6)
2-SW45A $ 428,733.379 (5)
2-SW45B $ 428,733.379 (6)
2-SW46A $ 406,525.014 (5)
2-SW46B $ 406,525.014 (6)
2-SW47A $ 407,309.173 (5)
2-SW47B $ 407,309.173 (6)
2-SW48A $ 483,452.390 (5)
2-SW48B $ 483,452.390 (6)
2-SW49A $ 1,121,445.745 (5)
2-SW49B $ 1,121,445.745 (6)
2-SW50A $ 2,176,670.205 (5)
2-SW50B $ 2,176,670.205 (6)
2-SW51A $ 961,389.565 (5)
2-SW51B $ 961,389.565 (6)
2-SW52A $ 839,244.878 (5)
2-SW52B $ 839,244.878 (6)
SWR (7) (7)
(1) The interest rate on the Class 1-SW1 Interest shall be a per annum rate
equal to the Group 1 Net WAC.
-6-
(2) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group 1 Net WAC, subject
to a maximum rate of 2 times the REMIC Swap Rate for such Distribution
Date.
(3) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group 1 Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(4) The interest rate on the Class 2-SW2 Interest shall be a per annum rate
equal to the Group 2 Net WAC.
(5) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group 2 Net WAC, subject
to a maximum rate of 2 times the REMIC Swap Rate for such Distribution
Date.
(6) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group 2 Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(7) The Class SWR Interest shall have no principal amount and shall bear no
interest.
THE LOWER TIER REMIC
The following table sets forth the designations, initial principal
balances, interest rates, Classes of Corresponding Certificates and related Loan
Group for each interest in the Lower Tier REMIC:
Class(es) of Corresponding
Class Initial Principal Balance Interest Rate Certificates or Related Loan Group
----- ------------------------- ------------- ----------------------------------
LTA-1 (1) (8) A-1, R
LTA-2A (1) (8) A-2A
LTA-2B (1) (8) A-2B
LTA-2C (1) (8) A-2C
LTA-2D (1) (8) A-2D
LTM-1 (1) (8) M-1
LTM-2 (1) (8) M-2
LTM-3 (1) (8) M-3
LTM-4 (1) (8) M-4
LTM-5 (1) (8) M-5
LTM-6 (1) (8) M-6
LTB-1 (1) (8) B-1
LTB-2 (1) (8) B-2
LTB-3 (1) (8) B-3
LTIX (2) (8) N/A
LTII1A (3) (8) Loan Group 1
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LTII1B (4) (9) Loan Group 1
LTII2A (5) (8) Loan Group 2
LTII2B (6) (10) Loan Group 2
LTIIX (7) (8) N/A
LT-IO (11) (11) N/A
LTR (12) (12) N/A
(1) The initial principal balance of each of these Lower Tier REMIC Regular
Interests shall equal 1/4 of the initial Class Certificate Balance of its
Corresponding Certificates.
(2) The initial principal balance of the Class LTIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC I Marker Interests.
(3) The initial principal balance of the Class LTII1A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group 1 Mortgage Loans over (ii) the aggregate of the initial Class
Certificate Balances of the Group 1 Certificates.
(4) The initial principal balance of the Class LTII1B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group 1
Mortgage Loans.
(5) The initial principal balance of the Class LTII2A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group 2 Mortgage Loans over (ii) the aggregate of the initial Class
Certificate Balances of the Group 2 Certificates.
(6) The initial principal balance of the Class LTII2B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group 2
Mortgage Loans.
(7) The initial principal balance of the Class LTIIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC II Marker Interests.
(8) For each Distribution Date, the interest rate for each of the Lower Tier
REMIC Regular Interests (other than the Class LTII1B, the Class LTII2B and
the Class LT-IO Interests) shall be a per annum rate (but not less than
zero) equal to the product of (i) the weighted average of the interest
rates on the SWAP REMIC Regular Interests for such Distribution Date and
(ii) a fraction the numerator of which is 30 and the denominator of which
is the actual number of days in the Accrual Period for the LIBOR
Certificates, provided however, that for any Distribution Date on which the
Class LT-IO Interest is entitled to a portion of interest accruals on a
SWAP REMIC Regular Interest ending with a designation "A" as described in
footnote 11 below, such weighted average shall be computed by first
subjecting the rate on such SWAP REMIC Regular Interest to a cap equal to
Swap LIBOR for such Distribution Date.
(9) For each Distribution Date, the interest rate for the Class LTII1B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "1" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided,
however, that for any Distribution Date on which the Class LT-IO Interest
is entitled to a portion of interest accruals on a SWAP REMIC Regular
Interest ending with a designation "A" as described in footnote 11 below,
such weighted average shall be computed by first subjecting the rate on
such SWAP REMIC Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
(10) For each Distribution Date, the interest rate for the Class LTII2B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "2" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator
-8-
of which is the actual number of days in the Accrual Period for the LIBOR
Certificates, provided, however, that for any Distribution Date on which
the Class LT-IO Interest is entitled to a portion of interest accruals on a
SWAP REMIC Regular Interest ending with a designation "A" as described in
footnote 11 below, such weighted average shall be computed by first
subjecting the rate on such SWAP REMIC Regular Interest to a cap equal to
Swap LIBOR for such Distribution Date.
(11) The Class LT-IO Interest is an interest-only class that does not have a
principal balance. For only those Distribution Dates listed in the first
column of the table below, the Class LT-IO Interest shall be entitled to
interest accrued on the SWAP REMIC Regular Interest listed in the second
column below at a per annum rate equal to the excess, if any, of (i) the
interest rate for such SWAP REMIC Regular Interest for such Distribution
Date over (ii) Swap LIBOR for such Distribution Date.
SWAP REMIC
Distribution Date Regular Interest
----------------- ----------------
7 Class 1-SW1A
Class 2-SW1A
7-8 Class 1-SW2A
Class 2-SW2A
7-9 Class 1-SW3A
Class 2-SW3A
7-10 Class 1-SW4A
Class 2-SW4A
7-11 Class 1-SW5A
Class 2-SW5A
7-12 Class 1-SW6A
Class 2-SW6A
7-13 Class 1-SW7A
Class 2-SW7A
7-14 Class 1-SW8A
Class 2-SW8A
7-15 Class 1-SW9A
Class 2-SW9A
7-16 Class 1-SW10A
Class 2-SW10A
7-17 Class 1-SW11A
Class 2-SW11A
7-18 Class 1-SW12A
Class 2-SW12A
7-19 Class 1-SW13A
Class 2-SW13A
7-20 Class 1-SW14A
Class 2-SW14A
7-21 Class 1-SW15A
Class 2-SW15A
7-22 Class 1-SW16A
Class 2-SW16A
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7-23 Class 1-SW17A
Class 2-SW17A
7-24 Class 1-SW18A
Class 2-SW18A
7-25 Class 1-SW19A
Class 2-SW19A
7-26 Class 1-SW20A
Class 2-SW20A
7-27 Class 1-SW21A
Class 2-SW21A
7-28 Class 1-SW22A
Class 2-SW22A
7-29 Class 1-SW23A
Class 2-SW23A
7-30 Class 1-SW24A
Class 2-SW24A
7-31 Class 1-SW25A
Class 2-SW25A
7-32 Class 1-SW26A
Class 2-SW26A
7-33 Class 1-SW27A
Class 2-SW27A
7-34 Class 1-SW28A
Class 2-SW28A
7-35 Class 1-SW29A
Class 2-SW29A
7-36 Class 1-SW30A
Class 2-SW30A
7-37 Class 1-SW31A
Class 2-SW31A
7-38 Class 1-SW32A
Class 2-SW32A
7-39 Class 1-SW33A
Class 2-SW33A
7-40 Class 1-SW34A
Class 2-SW34A
7-41 Class 1-SW35A
Class 2-SW35A
7-43 Class 1-SW36A
Class 2-SW36A
7-44 Class 1-SW37A
Class 2-SW37A
7-45 Class 1-SW38A
Class 2-SW38A
7-46 Class 1-SW39A
Class 2-SW39A
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7-47 Class 1-SW40A
Class 2-SW40A
7-48 Class 1-SW41A
Class 2-SW41A
7-49 Class 1-SW42A
Class 2-SW42A
7-50 Class 1-SW43A
Class 2-SW43A
7-51 Class 1-SW44A
Class 2-SW44A
7-52 Class 1-SW45A
Class 2-SW45A
7-53 Class 1-SW46A
Class 2-SW46A
7-54 Class 1-SW47A
Class 2-SW47A
7-55 Class 1-SW48A
Class 2-SW48A
7-56 Class 1-SW49A
Class 2-SW49A
7-57 Class 1-SW50A
Class 2-SW50A
7-58 Class 1-SW51A
Class 2-SW51A
7-60 Class 1-SW52A
Class 2-SW52A
(15) The Class LTR Interest shall have no principal amount and shall bear
no interest.
THE UPPER TIER REMIC
The following table sets forth the designation, the initial principal
balances, the interest rates and Classes of Related Certificates for each of the
interests in the Upper Tier REMIC.
Class Initial Principal Balance Rate Class of Related Certificates
----- ------------------------- ---- -----------------------------
UTA-1 (1) (2) A-1
UTA-2A (1) (2) A-2A
UTA-2B (1) (2) A-2B
UTA-2C (1) (2) A-2C
UTA-2D (1) (2) A-2D
UTM-1 (1) (2) M-1
UTM-2 (1) (2) M-2
UTM-3 (1) (2) M-3
UTM-4 (1) (2) M-4
UTM-5 (1) (2) M-5
UTM-6 (1) (2) M-6
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UTB-1 (1) (2) B-1
UTB-2 (1) (2) B-2
UTB-3 (1) (2) B-3
Uncertificated Class C Interest (3) (3) N/A
UT-IO (4) (4) N/A
Residual Interest (1) (2) R
(1) The initial principal balance of each of these REMIC Regular Interests and
the Residual Interest shall equal the initial principal balance of its
Class of Related Certificates.
(2) The interest rates on each of these REMIC Regular Interests and the
Residual Interest shall be an annual rate equal to the Certificate Rate for
the Class of Related Certificates, provided that in lieu of the applicable
Available Funds Cap set forth in the definition of an applicable
Certificate Rate, the applicable Upper Tier REMIC Net WAC Cap shall be
used.
(3) The Uncertificated Class C Interest shall have an initial principal balance
equal to the initial Overcollateralization Amount. The Uncertificated Class
C Interest shall accrue interest on a notional balance set forth in the
definition of Class C Current Interest at a rate equal to the Class C
Distributable Interest Rate. The Uncertificated Class C Interest shall be
represented by the Class C Certificates.
(4) The Class UT-IO Interest shall have no principal amount and will not have
an interest rate, but will be entitled to 100% of the interest accrued with
respect to the Class LT-IO Interest. The Class UT-IO Interest shall be
represented by the Class C Certificates.
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
initial Class Certificate Balance or initial notional amount, integral dollar
multiples in excess thereof (except that one Certificate of each Class may be
issued in a different amount which must be in excess of the applicable minimum
dollar denomination) and minimum denomination for each Class of Certificates
comprising interests in the Trust Fund created hereunder.
Initial Class Certificate Integral Multiples Minimum
Class Balance or Initial Notional in Excess of Denominations or
Designation Amount Minimum Percentage Interest
----------- --------------------------- ------------------ -------------------
Class A-1 $189,685,000.00 $1.00 $25,000.00
Class A-2A $142,125,000.00 $1.00 $25,000.00
Class A-2B $ 42,062,000.00 $1.00 $25,000.00
Class A-2C $ 54,972,000.00 $1.00 $25,000.00
Class A-2D $ 26,907,000.00 $1.00 $25,000.00
Class R $ 100 N/A $ 100
Class M-1 $ 5,609,000.00 $1.00 $25,000.00
Class M-2 $ 2,438,000.00 $1.00 $25,000.00
Class M-3 $ 2,438,000.00 $1.00 $25,000.00
Class M-4 $ 2,438,000.00 $1.00 $25,000.00
Class M-5 $ 2,438,000.00 $1.00 $25,000.00
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Initial Class Certificate Integral Multiples Minimum
Class Balance or Initial Notional in Excess of Denominations or
Designation Amount Minimum Percentage Interest
----------- --------------------------- ------------------ -------------------
Class M-6 $ 2,438,000.00 $1.00 $25,000.00
Class B-1 $ 2,438,000.00 $1.00 $25,000.00
Class B-2 $ 2,438,000.00 $1.00 $25,000.00
Class B-3 $ 2,438,000.00 $1.00 $25,000.00
Class P N/A(1) 1% 100%
Class C (2) 1% (2)
----------
(1) The Class P Certificates shall not have minimum dollar denominations or
Class Certificate Balance and shall be issued in a minimum percentage
interest of 10% and an aggregate percentage interest of 100%. The Class P
Certificates will be entitled to receive Prepayment Charges on the
Prepayment Charge Mortgage Loans.
(2) The Class C Certificates shall not have minimum dollar denominations as the
Class Certificate Balance thereof shall vary over time as described herein
and shall be issued in a minimum percentage interest of 10% and an
aggregate percentage interest of 100%.
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance of $487,784,779.61
In consideration of the mutual agreements herein contained, the Depositor,
the Trustee, Securities Administrator and the Master Servicer hereby agree as
follows:
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
Account: The Master Servicer Collection Account, Distribution Account and
any Protected Account as the context may require.
Accountant's Attestation: As defined in Section 3.17.
Accrual Period: With respect to the Certificates, their Corresponding REMIC
Regular Interests and the Lower Tier REMIC Interests and a Distribution Date,
the period from and including the preceding Distribution Date (or from the
Closing Date in the case of the first Distribution Date) to and including the
day prior to such Distribution Date and with respect to the SWAP REMIC Regular
Interests and any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs. All calculations of interest
with respect to the Certificates, their Corresponding REMIC Regular Interests
and the Lower Tier REMIC Interests will be made on the basis of the actual
number of days elapsed in the related Accrual Period and a 360 day year and all
calculations of interest on the SWAP REMIC Regular Interests will be made on the
basis of a 360-day year consisting of twelve 30-day months.
Additional Disclosure Notification: As defined in Section 3.18(b).
Additional Form 10-D Disclosure: As defined in Section 3.18(e).
Additional Form 10-K Disclosure: As defined in Section 3.18(h).
Adjustment Date: means, with respect to a Mortgage Loan, generally the
first day of the month or months specified in the related mortgage note.
Adverse REMIC Event: As defined in Section 9.12(g).
Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Master Servicer
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Master Servicer has actual knowledge to the
contrary.
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Agreement: This Pooling and Servicing Agreement, dated as of April 1, 2007,
by and among the Depositor, the Master Servicer, the Securities Administrator
and the Trustee, including the exhibits hereto, and all amendments hereof and
supplements hereto.
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of "AAA" in the case of S&P or "Aaa" in the case of ▇▇▇▇▇'▇. For any
short-term deposit or security, a rating of "A-l+" in the case of S&P or "P-1"
in the case of ▇▇▇▇▇'▇.
Applied Realized Loss Amount: With respect to any class of Subordinate
Certificates and as to any Distribution Date, the sum of the Realized Losses
with respect to the Mortgage Loans which have been applied in reduction of the
Class Certificate Balance of such class.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan, the
amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assessment of Compliance: As defined in Section 3.17.
Assignment: An assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the sale
of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
Assignment Agreements: The CitiMortgage Assignment Agreement, the
GreenPoint Assignment Agreement, the PHH Assignment Agreement and the Wilshire
Servicing Agreement, which are attached hereto as Exhibits I-1 through I-4,
respectively.
Auction: The one-time auction conducted by the Securities Administrator, as
described in Section 10.01(b) hereof.
Available Funds Cap: means any of the Class A-1 Available Funds Cap, the
Class A-2 Available Funds Cap or the Weighted Average Available Funds Cap.
Back-Up Certification: As defined in Section 3.18(k).
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. Sections 101-1330.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a Depository Participant, or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Certificates (other than the Class R Certificate) shall be Book-Entry
Certificates.
-15-
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange or Federal Reserve is closed or on which
banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Cap Contract Counterparty: The Royal Bank of Scotland plc with whom the
Securities Administrator, on behalf of the Issuing Entity, entered into each of
the Corridor Contracts.
Certificate: Any mortgage pass-through certificate issued pursuant to this
Agreement evidencing a beneficial ownership interest in that portion of the
Trust Fund related to the Mortgage Loans, signed and countersigned by the
Securities Administrator.
Certificate Margin: Means the Class A-1 Certificate Margin, the Class A-2A
Certificate Margin, the Class A-2B Certificate Margin, the Class A-2C
Certificate Margin, the Class A-2D Certificate Margin, the Class M-1 Certificate
Margin, the Class M-2 Certificate Margin, the Class M-3 Certificate Margin, the
Class M-4 Certificate Margin, the Class M-5 Certificate Margin, the Class M-6
Certificate Margin, the Class B-1 Certificate Margin, the Class B-2 Certificate
Margin, the Class B-3 Certificate Margin, and the Class R Certificate Margin.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Rate: Means, with respect to any class of the LIBOR
Certificates on any Distribution Date, the lesser of (1) One-Month LIBOR plus
the related Certificate Margin for such class of Certificates, (2) the related
Available Funds Cap and (3) the related Maximum Rate Cap.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The Person in whose name a Regular Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of the Class R Certificate
for any purpose hereof. The NIMs Insurer and the Trustee are entitled to rely
conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification Parties: As defined in Section 3.18(k).
Certifying Person: As defined in Section 3.18(k).
CitiMortgage: CitiMortgage, Inc., or any successor thereto.
CitiMortgage Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2007, among CitiMortgage, the
Depositor and the Sponsor pursuant to which the CitiMortgage Servicing
Agreements and the rights of the Sponsor thereunder (other than the rights to
enforce the representations and warranties with respect to the CitiMortgage
Loans) were assigned to the Depositor for the benefit of the Certificateholders.
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CitiMortgage Loans: The Mortgage Loans serviced by CitiMortgage pursuant to
the CitiMortgage Servicing Agreement.
CitiMortgage Servicing Agreement: The Mortgage Servicing Purchase and Sale
Agreement, dated as of May 1, 2006, between the Sponsor and CitiMortgage.
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class A Certificates: Any one of the Class A-1, Class A-2A, Class A-2B,
Class A-2C or Class A-2D Certificates as designated on the face thereof
substantially in the form annexed hereto as Exhibit A-1, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, representing the right to distributions as set forth herein and
therein.
Class A-1 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group 1 based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Group 1 Mortgage Loans
to the Stated Principal Balance of the total pool of Mortgage Loans) allocable
to the Group 1 Mortgage Loans of any Net Swap Payments or Swap Termination
Payments (other than Defaulted Swap Termination Payments) owed to the Swap
Counterparty for such Distribution Date and (y) the aggregate Stated Principal
Balance of the Mortgage Loans in Group 1 as of the first day of the related
Accrual Period (or, in the case of the first Distribution Date, as of the
Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-1 Available Funds Cap shall relate to the Class A-1 and Class R
Certificates.
Class A-1 Certificate: Any Certificate designated as a "Class A-1
Certificate" on the face thereof substantially in the form annexed hereto as
Exhibit A-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein.
Class A-1 Certificate Rate: For the first Distribution Date, 5.530% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-1 Margin, (2) the Class A-1 Available Funds Cap for such
Distribution Date and (3) the Class A-1 Maximum Rate Cap for such Distribution
Date.
Class A-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class A-1 Certificates.
Class A-1 Corridor Contract: The confirmation and agreement, including the
schedule thereto, between the Securities Administrator on behalf of the Issuing
Entity and the Cap Contract Counterparty (in the form of Exhibit N-1 hereto).
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Class A-1 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-1 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-1 One-Month LIBOR Corridor Table
attached hereto as Exhibit H-1.
Class A-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Certificate Rate on
the Class A-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-1 Certificates.
Class A-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-1 Certificate Rate for the related Accrual Period.
Class A-1 Lower Collar: With respect to each Distribution Date, the
applicable per annum rate set forth under the heading "1ML Strike Lower Collar"
in the Class A-1 One-Month LIBOR Corridor Table (set forth on Exhibit H-1).
Class A-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.210% per annum, and (ii) after the Initial Optional
Termination Date, 0.420% per annum.
Class A-1 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group 1 Mortgage Loans had
the Group 1 Mortgage Loans provided for interest at their maximum lifetime Net
Mortgage Rates less the pro rata portion (calculated based on the ratio of the
Stated Principal Balance of the Group 1 Mortgage Loans to the Stated Principal
Balance of the total pool of Mortgage Loans) allocable to the Group 1 Mortgage
Loans of any Net Swap Payments or Swap Termination Payments owed to the Swap
Counterparty for such Distribution Date (other than Defaulted Swap Termination
Payments), and (y) the aggregate Stated Principal Balance of the Group 1
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period. The Class A-1 Maximum Rate
Cap shall relate to the Class A-1 Certificates.
Class A-1 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-1 Corridor Contract, a rate equal
to the lesser of One-Month LIBOR and 10.790% per annum.
Class A-2 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group 2 based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Group 2
-18-
Mortgage Loans to the Stated Principal Balance of the total pool of Mortgage
Loans) allocable to the Group 2 Mortgage Loans of any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) owed to
the Swap Counterparty for such Distribution Date, and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in Group 2 as of the first day of the
related Accrual Period (or, in the case of the first Distribution Date, as of
the Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
Class A-2 Certificate: Any one of the Class A-2A, Class A-2B, Class A-2C
and Class A-2D Certificates as designated on the face thereof substantially in
the form annexed hereto as Exhibit A-1, executed by the Securities Administrator
and authenticated and delivered by the Securities Administrator, representing
the right to distributions as set forth herein and therein.
Class A-2 Corridor Contract: The confirmation and agreement, including the
schedule thereto, between the Securities Administrator on behalf of the Issuing
Entity and the Cap Contract Counterparty (in the form of Exhibit N-2 hereto).
Class A-2 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-2 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-2 One-Month LIBOR Corridor Table
attached hereto as Exhibit H-2.
Class A-2 Lower Collar: With respect to each Distribution Date, the
applicable per annum rate set forth under the heading "1ML Strike Lower Collar"
in the Class A-2 One-Month LIBOR Corridor Table (set forth on Exhibit H-2).
Class A-2 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group 2 Mortgage Loans had
the Group 2 Mortgage Loans provided for interest at their maximum lifetime Net
Mortgage Rates less the pro rata portion (calculated based on the ratio of the
Stated Principal Balance of the Group 2 Mortgage Loans to the Stated Principal
Balance of the total pool of Mortgage Loans) allocable to the Group 2 Mortgage
Loans of any Net Swap Payments or Swap Termination Payments owed to the Swap
Counterparty for such Distribution Date (other than Defaulted Swap Termination
Payments), and (y) the aggregate Stated Principal Balance of the Group 2
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period. The Class A-2 Maximum Rate
Cap shall relate to the Class A-2 Certificates.
Class A-2 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-2 Corridor Contract, a rate equal
to the lesser of One-Month LIBOR and 10.260% per annum.
Class A-2A Certificate: Any Certificate designated as a "Class A-2A
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
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Class A-2A Certificate Rate: For the first Distribution Date, 5.430% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2A Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2A Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2A Certificate Rate on
the Class A-2A Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2A Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-2A Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-2A Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2A Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2A Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2A Certificate Rate for the related Accrual Period.
Class A-2A Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.110% per annum, and (ii) after the Initial
Optional Termination Date, 0.220% per annum.
Class A-2B Certificate: Any Certificate designated as a "Class A-2B
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2B Certificate Rate: For the first Distribution Date, 5.530% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2B Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2B Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2B Certificate Rate on
the Class A-2B Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2B Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Non-Supported Interest
Shortfall allocated on such Distribution Date to the Class A-2B Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2B Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2B Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2B Certificate Rate for the related Accrual Period.
-20-
Class A-2B Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.210% per annum, and (ii) after the Initial
Optional Termination Date, 0.420% per annum.
Class A-2C Certificate: Any Certificate designated as a "Class A-2C
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2C Certificate Rate: For the first Distribution Date, 5.640% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2C Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2C Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2C Certificate Rate on
the Class A-2C Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2C Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-2C Certificates.
For purposes of calculating interest, principal distributions on a Distribution
Date will be deemed to have been made on the first day of the Accrual Period in
which such Distribution Date occurs.
Class A-2C Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2C Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2C Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2C Certificate Rate for the related Accrual Period.
Class A-2C Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.320% per annum, and (ii) after the Initial
Optional Termination Date, 0.640% per annum.
Class A-2D Certificate: Any Certificate designated as a "Class A-2D
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2D Certificate Rate: For the first Distribution Date, 5.650% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2D Margin, (2) the Class A-2 Available Funds Cap for such
Distribution Date and (3) the Class A-2 Maximum Rate Cap for such Distribution
Date.
Class A-2D Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2D Certificate Rate on
the Class A-2D Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2D Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-2D Certificates.
For purposes of calculating
-21-
interest, principal distributions on a Distribution Date will be deemed to have
been made on the first day of the Accrual Period in which such Distribution Date
occurs.
Class A-2D Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2D Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2D Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2D Certificate Rate for the related Accrual Period.
Class A-2D Margin: As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.330% per annum, and (ii) after the Initial
Optional Termination Date, 0.660% per annum.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B-1 Certificate: Any Certificate designated as "Class B-1 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-1 Certificate Rate: For the first Distribution Date, 6.370% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-1 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-1 Certificates.
Class B-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-1 Certificate Rate on
the Class B-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class B-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-1 Certificates.
Class B-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-1 Certificate Rate for the related Accrual Period.
Class B-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.050% per annum, and (ii) after the Initial Optional
Termination Date, 1.575% per annum.
-22-
Class B-1 Principal Distribution Amount: means, with respect to any
Distribution Date on or after the Stepdown Date, 100% of the Principal
Distribution Amount if the aggregate Class Certificate Balance of the Senior
Certificates and Class M Certificates has been reduced to zero and a Stepdown
Trigger Event exists, or, as long as a Stepdown Trigger Event does not exist,
the excess of (1) the sum of (A) the Class Certificate Balance of the Senior
Certificates (after taking into account distributions of the Senior Principal
Distribution Amount to the Senior Certificates for such Distribution Date), (B)
the Class Certificate Balance of the Class M-1 Certificates (after taking into
account distributions of the Class M-1 Principal Distribution Amount to the
Class M-1 Certificates for such Distribution Date), (C) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account distributions
of the Class M-2 Principal Distribution Amount to the Class M-2 Certificates for
such Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account distributions of the Class M-3 Principal
Distribution Amount to the Class M-3 Certificates for such Distribution Date),
(E) the Class Certificate Balance of the Class M-4 Certificates (after taking
into account distributions of the Class M-4 Principal Distribution Amount to the
Class M-4 Certificates for such Distribution Date), (F) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account distributions
of the Class M-5 Principal Distribution Amount to the Class M-5 Certificates for
such Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account distributions of the Class M-6 Principal
Distribution Amount to the Class M-6 Certificates for such Distribution Date)
and (H) the Class Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 96.40% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Senior Certificates and Class M Certificates has been reduced to zero,
the Class B-1 Principal Distribution Amount will equal the lesser of (A) the
outstanding Class Certificate Balance of the Class B-1 Certificates and (B) 100%
of the Principal Distribution Amount remaining after any distributions on the
Senior Certificates and Class M Certificates and (2) in no event will the Class
B-1 Principal Distribution Amount with respect to any Distribution Date exceed
the Class Certificate Balance of the Class B-1 Certificates.
Class B-2 Certificate: Any Certificate designated as "Class B-2 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-2 Certificate Rate: For the first Distribution Date, 6.370% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-2 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-2 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-2 Certificates.
Class B-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-2 Certificate Rate on
the Class B-2 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class
-23-
in respect of Current Interest or Class B-2 Interest Carry Forward Amount that
is recovered as a voidable preference by a trustee in bankruptcy, less any
Prepayment Interest Shortfalls allocated on such Distribution Date to the Class
B-2 Certificates.
Class B-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-2 Certificate Rate for the related Accrual Period.
Class B-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.050% per annum, and (ii) after the Initial Optional
Termination Date, 1.575% per annum.
Class B-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Class A, Class M and Class B-1
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the Class Certificate Balance of the Senior Certificates (after taking into
account distributions of the Senior Principal Distribution Amount to the Senior
Certificates for such Distribution Date), (B) the Class Certificate Balance of
the Class M-1 Certificates (after taking into account distributions of the Class
M-1 Principal Distribution Amount to the Class M-1 Certificates for such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distributions of the Class M-2 Principal
Distribution Amount to the Class M-2 Certificates for such Distribution Date),
(D) the Class Certificate Balance of the Class M-3 Certificates (after taking
into account distributions of Class M-3 Principal Distribution Amount to the
Class M-3 Certificates for such Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account distributions
of the Class M-4 Principal Distribution Amount to the Class M-4 Certificates for
such Distribution Date), (F) the Class Certificate Balance of the Class M-5
Certificates (after taking into account distributions of the Class M-5 Principal
Distribution Amount to the Class M-5 Certificates for such Distribution Date),
(G) the Class Certificate Balance of the Class M-6 Certificates (after taking
into account distributions of the Class M-6 Principal Distribution Amount to the
Class M-6 Certificates for such Distribution Date), (H) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account distributions
of the Class B-1 Principal Distribution Amount to the Class B-1 Certificates for
such Distribution Date), and (I) the Class Certificate Balance of the Class B-2
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) 97.40% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Class A, Class M and Class B-1 Certificates has been
reduced to zero, the Class B-2 Principal Distribution Amount will equal the
lesser of (A) the outstanding Class Certificate Balance of the Class B-2
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Class A, Class M and Class B-1 Certificates and (2) in
no event will the Class B-2 Principal Distribution Amount with
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respect to any Distribution Date exceed the Class Certificate Balance of the
Class B-2 Certificates.
Class B-3 Certificate: Any Certificate designated as "Class B-3 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-3 Certificate Rate: For the first Distribution Date, 6.370% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-3 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class B-3 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class B-3 Certificates.
Class B-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-3 Certificate Rate on
the Class B-3 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class B-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-3 Certificates.
Class B-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-3 Certificate Rate for the related Accrual Period.
Class B-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.050% per annum, and (ii) after the Initial Optional
Termination Date, 1.575% per annum.
Class B-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Class A, Class M, Class B-1 and
Class B-2 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the Class Certificate Balance of the Senior Certificates
(after taking into account distributions of the Senior Principal Distribution
Amount to the Senior Certificates for such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
distributions of the Class M-1 Principal Distribution Amount to the Class M-1
Certificates for such Distribution Date), (C) the Class Certificate Balance of
the Class M-2 Certificates (after taking into account distributions of the Class
M-2 Principal Distribution Amount to the Class M-2 Certificates for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account distributions of Class M-3 Principal
Distribution Amount to the Class M-3 Certificates for such Distribution Date),
(E) the Class Certificate Balance of the Class M-4 Certificates (after taking
into account distributions of the Class M-4 Principal Distribution Amount to the
Class M-4
-25-
Certificates for such Distribution Date), (F) the Class Certificate Balance of
the Class M-5 Certificates (after taking into account distributions of the Class
M-5 Principal Distribution Amount to the Class M-5 Certificates for such
Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account distributions of the Class M-6 Principal
Distribution Amount to the Class M-6 Certificates for such Distribution Date),
(H) the Class Certificate Balance of the Class B-1 Certificates (after taking
into account distributions of the Class B-1 Principal Distribution Amount to the
Class B-1 Certificates for such Distribution Date), (I) the Class Certificate
Balance of the Class B-2 Certificates (after taking into account distributions
of the Class B-2 Principal Distribution Amount to the Class B-2 Certificates for
such Distribution Date), and (J) the Class Certificate Balance of the Class B-3
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) 98.40% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Class A, Class M, Class B-1 and Class B-2
Certificates has been reduced to zero, the Class B-3 Principal Distribution
Amount will equal the lesser of (A) the outstanding Class Certificate Balance of
the Class B-3 Certificates and (B) 100% of the Principal Distribution Amount
remaining after any distributions on the Class A, Class M, Class B-1 and Class
B-2 Certificates and (2) in no event will the Class B-3 Principal Distribution
Amount with respect to any Distribution Date exceed the Class Certificate
Balance of the Class B-3 Certificates.
Class C Applied Realized Loss Amount: As of any Distribution Date, the sum
of all Realized Loss Amounts with respect to the Mortgage Loans which have been
applied to the reduction of the Class Certificate Balance of the Class C
Certificates.
Class C Certificate: Any Certificate designated as a "Class C Certificate"
on the face thereof, in the form of Exhibit A-5 hereto, representing the right
to distributions as set forth herein.
Class C Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class C Certificates.
Class C Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class C Distributable Interest Rate on
a notional amount equal to the aggregate principal balance of the Lower Tier
REMIC Regular Interests immediately prior to such Distribution Date, plus the
interest portion of any previous distributions on such Class that is recovered
as a voidable preference by a trustee in bankruptcy, less any Prepayment
Interest Shortfalls allocated on such Distribution Date to the Class C
Certificates.
Class C Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest) over (b) two times the weighted average of
the interest rates on the Lower Tier REMIC I Marker Interests and the Class LTIX
Interest (treating for purposes of this clause (b) the interest rate on each of
the Lower Tier REMIC I Marker Interests as being subject to a cap and a floor
equal to the interest rate of the Corresponding REMIC Regular Interest of the
Corresponding Certificates (as adjusted, if necessary, to reflect the length of
the Accrual Period for the LIBOR Certificates)
-26-
and treating the Class LTIX Interest as being capped at zero). The averages
described in the preceding sentence shall be weighted on the basis of the
respective principal balances of the Lower Tier REMIC Regular Interests
immediately prior to any date of determination.
Class C Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest with respect to prior Distribution
Dates over (B) the amount actually distributed to the Class C Certificates with
respect to interest on such prior Distribution Dates or added to the aggregate
Class Certificate Balance of the Class C Certificates (other than amounts so
added attributable to Subsequent Recoveries or proceeds of the Swap Agreement).
Class C Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class C Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Class Certificate
Balance of such Class C Certificates (A) pursuant to the last sentence of the
definition of "Class Certificate Balance" or (B) attributable to distributions
of proceeds of the Swap Agreement.
Class Certificate Balance: As to any Certificate and as of any Distribution
Date, the Initial Class Certificate Balance of such Certificate less the sum of
(1) all amounts distributed with respect to such Certificate in reduction of the
Class Certificate Balance thereof on previous Distribution Dates pursuant to
Section 6.01, and (2) any Realized Loss Amounts allocated to such Certificate on
previous Distribution Dates pursuant to Section 6.01(j). On each Distribution
Date, after all distributions of principal on such Distribution Date, a portion
of the Class C Interest Carry Forward Amount in an amount equal to the excess of
the Overcollateralization Amount on such Distribution Date over the
Overcollateralization Amount as of the preceding Distribution Date (or, in the
case of the first Distribution Date, the initial Overcollateralization Amount
(based on the Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date)) will be added to the aggregate Class Certificate Balance of the Class C
Certificates (on a pro rata basis). Notwithstanding the immediately preceding
sentence, however, to the extent any excess referred to in the immediately
preceding sentence is attributable to distributions of proceeds of the Swap
Agreement, such sentence shall be applied by substituting "Class C Unpaid
Realized Loss Amount" for "Class C Interest Carry Forward Amount".
Notwithstanding the foregoing on any Distribution Date relating to a Due Period
in which a Subsequent Recovery has been received by the related Servicer, the
Class Certificate Balance of any Class of Certificates then outstanding for
which any Realized Loss Amount has been allocated will be increased, in order of
seniority, by an amount equal to the lesser of (i) the Unpaid Realized Loss
Amount for such Class of Certificates and (ii) the total of any Subsequent
Recovery distributed on such date to the Certificateholders (reduced by the
amount of the increase in the Class Certificate Balance of any more senior Class
of Certificates pursuant to this sentence on such Distribution Date).
Class LT-IO Interest: An uncertificated regular interest in the Lower Tier
REMIC with the characteristics set forth in the description of the Lower Tier
REMIC in the Preliminary Statement.
Class LTA-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificates and an interest rate equal to the Net
Rate.
-27-
Class LTA-2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2C Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2D Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
over (ii) the initial principal balance of the Lower Tier REMIC I Marker
Interests, and with an interest rate equal to the Net Rate.
Class LTII1A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans as of the
Cut-off Date over (ii) the aggregate of the initial Class Certificate Balances
of the Group 1 Certificates, and with an interest rate equal to the Net Rate.
Class LTII1B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Stated
Principal Balance of the Group 1 Mortgage Loans as of the Cut-off Date, and with
an interest rate equal to the rate set forth in footnote 9 to the description of
the Lower Tier REMIC in the Preliminary Statement.
Class LTII2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Stated Principal Balance of the Group 2 Mortgage Loans as of the
Cut-off Date over (ii) the aggregate of the
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initial Class Certificate Balances of the Group 2 Certificates, and with an
interest rate equal to the Net Rate.
Class LTII2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Stated
Principal Balance of the Group 2 Mortgage Loans as of the Cut-off Date, and with
an interest rate equal to the rate set forth in footnote 10 to the description
of the Lower Tier REMIC in the Preliminary Statement.
Class LTIIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
over (ii) the initial principal balance of the Lower Tier REMIC II Marker
Interests, and with an interest rate equal to the Net Rate.
Class LTM-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-5 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-6 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTR Interest: The sole class of "residual interest" in the Lower Tier
REMIC.
Class M Certificate: Any one of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
M-4, Class M-5 and Class M-6 Certificates as designated on the face thereof
substantially in the form annexed hereto as Exhibit A-1, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, representing the right to distributions as set forth herein and
therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
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Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-1 Certificate Rate: For the first Distribution Date, 5.770% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-1 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-1 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-1 Certificates.
Class M-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-1 Certificate Rate on
the Class M-1 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-1 Certificates.
Class M-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-1 Certificate Rate for the related Accrual Period.
Class M-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.450% per annum, and (ii) after the Initial Optional
Termination Date, 0.6750% per annum.
Class M-1 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Class Certificate Balance of the Senior Certificates has been
reduced to zero and a Stepdown Trigger Event exists, or, as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the aggregate
Class Certificate Balance of the Senior Certificates (after taking into account
distributions of the Senior Principal Distribution Amount to the Senior
Certificates for such Distribution Date) and (B) the Class Certificate Balance
of the Class M-1 Certificates immediately prior to such Distribution Date over
(2) the lesser of (A) 90.40% of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (B) the excess of the aggregate
Stated Principal Balance of the Mortgage Loans as of such Distribution Date over
the Minimum Required Overcollateralization Amount. Notwithstanding the above,
(1) on any Distribution Date prior to the Stepdown Date on which the aggregate
Class Certificate Balance of the Senior Certificates has been reduced to zero,
the Class M-1 Principal Distribution Amount will equal the lesser of (A) the
outstanding Class Certificate Balance of the Class M-1 Certificates and (B) 100%
of the Principal Distribution Amount remaining after any distributions on the
Senior Certificates and (2) in no event will the Class M-1 Principal
Distribution Amount with respect to any Distribution Date exceed the Class
Certificate Balance of the Class M-1 Certificates.
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Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-2 Certificate Rate: For the first Distribution Date, 5.870% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-2 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-2 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-2 Certificates.
Class M-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Certificate Rate on
the Class M-2 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-2 Certificates.
Class M-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-2 Certificate Rate for the related Accrual Period.
Class M-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.550% per annum, and (ii) after the Initial Optional
Termination Date, 0.825% per annum.
Class M-2 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Senior Certificates and Class M-1
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the aggregate Class Certificate Balance of the Senior Certificates (after
taking into account distributions of the Senior Principal Distribution Amount to
the Senior Certificates for such Distribution Date), (B) the Class Certificate
Balance of the Class M-1 Certificates (after taking into account distributions
of the Class M-1 Principal Distribution Amount to the Class M-1 Certificates for
such Distribution Date) and (C) the Class Certificate Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) 91.40% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Senior Certificates and the Class M-1 Certificates
has been reduced to zero, the Class M-2 Principal Distribution Amount will equal
the lesser of (A) the outstanding Class Certificate Balance of the Class M-2
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Senior Certificates and
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Class M-1 Certificates and (2) in no event will the Class M-2 Principal
Distribution Amount with respect to any Distribution Date exceed the Class
Certificate Balance of the Class M-2 Certificates
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-3 Certificate Rate: For the first Distribution Date, 5.970% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-3 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-3 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-3 Certificates.
Class M-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Certificate Rate on
the Class M-3 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-3 Certificates.
Class M-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-3 Certificate Rate for the related Accrual Period.
Class M-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.650% per annum, and (ii) after the Initial Optional
Termination Date, 0.975% per annum.
Class M-3 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1 and Class M-2
Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the aggregate Class Certificate Balance of the Senior Certificates (after
taking into account distributions of the Senior Principal Distribution Amount to
the Senior Certificates for such Distribution Date), (B) the Class Certificate
Balance of the Class M-1 Certificates (after taking into account distributions
of the Class M-1 Principal Distribution Amount to the Class M-1 Certificates for
such Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distributions of the Class M-2 Principal
Distribution Amount to the Class M-2 Certificates for such Distribution Date)
and (D) the Class Certificate Balance of the Class M-3 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 92.40% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated
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Principal Balance of the Mortgage Loans as of such Distribution Date over the
Minimum Required Overcollateralization Amount. Notwithstanding the above, (1) on
any Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Class A, Class M-1 and Class M-2 Certificates has
been reduced to zero, the Class M-3 Principal Distribution Amount will equal the
lesser of (A) the outstanding Class Certificate Balance of the Class M-3
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Class A, Class M-1 and Class M-2 Certificates and (2)
in no event will the Class M-3 Principal Distribution Amount with respect to any
Distribution Date exceed the Class Certificate Balance of the Class M-3
Certificates.
Class M-4 Certificate: Any Certificate designated as a "Class M-4
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-4 Certificate Rate: For the first Distribution Date, 6.320% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-4 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-4 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-4 Certificates.
Class M-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-4 Certificate Rate on
the Class M-4 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-4 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-4 Certificates.
Class M-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-4 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-4 Certificate Rate for the related Accrual Period.
Class M-4 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.000% per annum, and (ii) after the Initial Optional
Termination Date, 1.500% per annum.
Class M-4 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2 and
Class M-3 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the aggregate Class Certificate Balance of the Senior
Certificates (after taking into account distributions of the Senior Principal
Distribution Amount to the Senior Certificates for such Distribution Date), (B)
the Class Certificate Balance of the Class M-1 Certificates (after taking into
account distributions of the Class ▇-▇ ▇▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Class M-1 Certificates for such Distribution Date),
(C) the Class Certificate Balance of the Class M-2 Certificates (after taking
into account distributions of the Class M-2 Principal Distribution Amount to the
Class M-2 Certificates for such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distributions
of the Class M-3 Principal Distribution Amount to the Class M-3 Certificates for
such Distribution Date) and (E) the Class Certificate Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) 93.40% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Class
Certificate Balance of the Class A, Class M-1, Class M-2 and Class M-3
Certificates has been reduced to zero, the Class M-4 Principal Distribution
Amount will equal the lesser of (A) the outstanding Class Certificate Balance of
the Class M-4 Certificates and (B) 100% of the Principal Distribution Amount
remaining after any distributions on the Class A, Class M-1, Class M-2 and Class
M-3 Certificates and (2) in no event will the Class M-4 Principal Distribution
Amount with respect to any Distribution Date exceed the Class Certificate
Balance of the Class M-4 Certificates.
Class M-5 Certificate: Any Certificate designated as a "Class M-5
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-5 Certificate Rate: For the first Distribution Date, 6.370% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-5 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-5 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-5 Certificates.
Class M-5 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-5 Certificate Rate on
the Class M-5 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-5 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-5 Certificates.
Class M-5 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-5 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-5 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-5 Certificate Rate for the related Accrual Period.
Class M-5 Margin: Means As of any Distribution Date, (i) on or before the
Initial Optional Termination Date, 1.050% per annum, and (ii) after the Initial
Optional Termination Date, 1.575% per annum.
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Class M-5 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2,
Class M-3 and Class M-4 Certificates has been reduced to zero and a Stepdown
Trigger Event exists, or, as long as a Stepdown Trigger Event does not exist,
the excess of (1) the sum of (A) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account distributions of the Senior
Principal Distribution Amount to the Senior Certificates for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distributions of the Class M-1 Principal Distribution Amount
to the Class M-1 Certificates for such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
distributions of the Class M-2 Principal Distribution Amount to the Class M-2
Certificates for such Distribution Date), (D) the Class Certificate Balance of
the Class M-3 Certificates (after taking into account distributions of the Class
M-3 Principal Distribution Amount to the Class M-3 Certificates for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account distributions of the Class M-4 Principal
Distribution Amount to the Class M-4 Certificates for such Distribution Date)
and (F) the Class Certificate Balance of the Class M-5 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) 94.40% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Class Certificate Balance
of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4 Certificates has
been reduced to zero, the Class M-5 Principal Distribution Amount will equal the
lesser of (A) the outstanding Class Certificate Balance of the Class M-5
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Certificates and (2) in no event will the Class M-5 Principal Distribution
Amount with respect to any Distribution Date exceed the Class Certificate
Balance of the Class M-5 Certificates.
Class M-6 Certificate: Any Certificate designated as a "Class M-6
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class M-6 Certificate Rate: For the first Distribution Date, 6.370% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-6 Margin, (2) the Weighted Average Available Funds Cap for such
Distribution Date and (3) the Weighted Average Maximum Rate Cap for such
Distribution Date.
Class M-6 Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class M-6 Certificates.
Class M-6 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-6 Certificate Rate on
the Class M-6 Class Certificate Balance as of such Distribution Date plus the
portion of any previous distributions on such Class in respect of Current
Interest or Class M-6 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-6 Certificates.
-▇▇-
▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-6 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-6 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-6 Certificate Rate for the related Accrual Period.
Class M-6 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.050% per annum, and (ii) after the Initial Optional
Termination Date, 1.575% per annum.
Class M-6 Principal Distribution Amount: with respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Class Certificate Balance of each class of Class A, Class M-1, Class M-2,
Class M-3, Class M-4 and Class M-5 Certificates has been reduced to zero and a
Stepdown Trigger Event exists, or, as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the aggregate Class Certificate Balance
of the Senior Certificates (after taking into account distributions of the
Principal Distribution Amount to the Senior Certificates for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distributions of the Class M-1 Principal Distribution Amount
to the Class M-1 Certificates for such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
distributions of the Class M-2 Principal Distribution Amount to the Class M-2
Certificates for such Distribution Date), (D) the Class Certificate Balance of
the Class M-3 Certificates (after taking into account distributions of the Class
M-3 Principal Distribution Amount to the Class M-3 Certificates for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account distributions of the Class M-4 Principal
Distribution Amount to the Class M-4 Certificates for such Distribution Date),
(F) the Class Certificate Balance of the Class M-5 Certificates (after taking
into account distributions of the Class M-5 Principal Distribution Amount to the
Class M-5 Certificates for such Distribution Date) and (G) the Class Certificate
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date over (2) the lesser of (A) 95.40% of the aggregate Stated Principal Balance
of the Mortgage Loans as of such Distribution Date and (B) the excess of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date over the Minimum Required Overcollateralization Amount. Notwithstanding the
above, (1) on any Distribution Date prior to the Stepdown Date on which the
aggregate Class Certificate Balance of the Class A, Class M-1, Class M-2, Class
M-3, Class M-4 and Class M-5 Certificates has been reduced to zero, the Class
M-6 Principal Distribution Amount will equal the lesser of (A) the outstanding
Class Certificate Balance of the Class M-6 Certificates and (B) 100% of the
Principal Distribution Amount remaining after any distributions on the Class A,
Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Certificates and (2) in
no event will the Class M-6 Principal Distribution Amount with respect to any
Distribution Date exceed the Class Certificate Balance of the Class M-6
Certificates.
Class P Certificate: Any one of the Class P Certificates as designated on
the face thereof substantially in the forum of annexed hereto as Exhibit A-4,
executed by the Securities Administrator and authenticated and delivered by the
Securities Administrator representing the right to distributions of Prepayment
Charges received on the Prepayment Charge Mortgage Loans as set forth herein.
-36-
Class R Certificate: The Class R Certificate executed, authenticated and
delivered by the Securities Administrator substantially in the form annexed
hereto as Exhibit A-3 and evidencing the ownership of the residual interest in
each REMIC.
Class R Certificate Rate: For the first Distribution Date, 5.530% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class R Margin, (2) the Class A-1 Available Funds Cap for such
Distribution Date and (3) the Class A-1 Maximum Rate Cap for such Distribution
Date.
Class R Class Certificate Balance: As of any date of determination, the
aggregate Class Certificate Balance of the Class R Certificate.
Class R Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class R Certificate Rate on the Class R
Class Certificate Balance as of such Distribution Date plus the portion of any
previous distributions on such Class in respect of Current Interest or a Class R
Interest Carry Forward Amount that is recovered as a voidable preference by a
trustee in bankruptcy, less any Prepayment Interest Shortfalls allocated on such
Distribution Date to the Class R Certificate. For purposes of calculating
interest, principal distributions on a Distribution Date will be deemed to have
been made on the first day of the Accrual Period in which such Distribution Date
occurs.
Class R Interest Carry Forward Amount: As of any Distribution Date, the sum
of (1) the excess of (A) the Class R Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to the Class R
Certificate with respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law) at the Class
R Certificate Rate for the related Accrual Period.
Class R Margin: With respect to any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.210%, and (ii) after the Initial Optional
Termination Date, 0.420%.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Class Certificate Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution Date.
Class SWR Interest: The sole class of "residual interest" in the SWAP
REMIC.
Closing Date: April 30, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: As defined in Section 6.05.
Cooperative: A corporation that has been formed for the purpose of
cooperative apartment ownership.
-37-
Cooperative Assets: Shares issued by Cooperatives, the related Cooperative
Lease and any other collateral securing the Cooperative Loans.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the cooperative apartment occupied
by the Mortgagor and relating to the related Cooperative Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
Cooperative Loan: The indebtedness of a Mortgagor evidenced by a Mortgage
Note which is secured by Cooperative Assets and which is being sold to the
Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument is
located at HSBC Bank USA, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Issuer Services - ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.,
MANA Series 2007-A3, or at such other address as the Trustee may designate from
time to time by notice to the Certificateholders, the Depositor and the Master
Servicer and with respect to the Securities Administrator, for Certificate
transfer purposes, ▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Services - MANA 2007-A3, and
for all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attn: Client Service Manager - MANA 2007-A3.
Corresponding Certificates: With respect to the Class LTA-1 Interest, the
Class A-1 and Class R Certificates. With respect to the Class LTA-2A Interest,
the Class A-2A Certificates. With respect to the Class LTA-2B Interest, the
Class A-2B Certificates. With respect to the Class LTA-2C Interest, the Class
A-2C Certificates. With respect to the Class LTA-2D Interest, the Class A-2D
Certificates. With respect to the Class LTM-1 Interest, the Class M-1
Certificates. With respect to the Class LTM-2 Interest, the Class M-2
Certificates. With respect to the Class LTM-3 Interest, the Class M-3
Certificates. With respect to the Class LTM-4 Interest, the Class M-4
Certificates. With respect to the Class LTM-5 Interest, the Class M-5
Certificates. With respect to the Class LTM-6 Interest, the Class M-6
Certificates. With respect to the Class LTB-1 Interest, the Class B-1
Certificates. With respect to the Class LTB-2 Interest, the Class B-2
Certificates. With respect to the Class LTB-3 Interest, the Class B-3
Certificates.
Corresponding REMIC Regular Interest: For each Class of Certificates, the
interest in the Upper Tier REMIC listed on the same row in the table entitled
"Upper Tier REMIC" in the Preliminary Statement.
Corridor Contract: Any of the Class A-1 Corridor Contract, the Class A-2
Corridor Contract or the Subordinate Certificates Corridor Contract.
Corridor Contract Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 6.01(l) in the
name of the Securities Administrator
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for the benefit of the Issuing Entity and designated "▇▇▇▇▇ Fargo Bank, National
Association, as Securities Administrator for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, MANA Series 2007-A3 - Corridor
Contract Account." Funds in the Corridor Contract Account shall be held in trust
for the Issuing Entity for the uses and purposes set forth in this Agreement.
Corridor Contract Notional Balance: Any of the Class A-1 Corridor Contract
Notional Balance, the Class A-2 Corridor Contract Notional Balance or
Subordinate Certificates Corridor Contract Notional Balance.
Corridor Contract Termination Date: The Distribution Date in October 2007.
Current Interest: Any of the Class A-1 Current Interest, the Class A-2A
Current Interest, the Class A-2B Current Interest, the Class A-2C Current
Interest, the Class A-2D Current Interest, the Class R Current Interest, the
Class M-1 Current Interest, the Class M-2 Current Interest, the Class M-3
Current Interest, the Class M-4 Current Interest, the Class M-5 Current
Interest, the Class M-6 Current Interest, the Class B-1 Current Interest, the
Class B-2 Current Interest, the Class B-3 Current Interest and the Class C
Current Interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: The agreement, dated as of April 1, 2007, among the
Master Servicer, the Securities Administrator, the Trustee and ▇▇▇▇▇ Fargo Bank,
N.A. in substantially the form of Exhibit G-1 hereto and the agreement, dated as
of April 1, 2007, among the Master Servicer, the Securities Administrator, the
Trustee and Deutsche Bank National Trust Company in substantially the form of
Exhibit G-2 hereto.
Custodian: Each of ▇▇▇▇▇ Fargo Bank, N.A. and Deutsche Bank National Trust
Company, including any successors in interest, or any successor custodian
appointed pursuant to the provisions hereof and of the applicable Custodial
Agreement.
Cut-off Date: April 1, 2007.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due on or prior to the Cut-off Date, whether or not received, and all
principal prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates after
the Cut-off Date.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defaulted Swap Termination Payment: Any payment required to be made by the
Supplemental Interest Trust to the Swap Counterparty pursuant to the Swap
Agreement as a result of an event of default under the Swap Agreement with
respect to which the Swap Counterparty is the defaulting party or a termination
event under that agreement (other than
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illegality or a tax event) with respect to which the Swap Counterparty is the
sole Affected Party (as defined in the Swap Agreement).
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
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 Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Depositor: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the Determination
Date as defined in the related Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined in
Section 860 E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "▇▇▇▇▇ Fargo Bank, National
Association, as Securities Administrator for HSBC Bank USA, National
Association, as Trustee f/b/o holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-A3 - Distribution Account."
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in May 2007, or, if
such 25th day is not a Business Day, the Business Day immediately following.
Due Date: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to
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be the first day of the following month or such other date specified in the
related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal
or state chartered depository institution (A) the short-term obligations of
which are rated A-1 or better by S&P and P-1 by ▇▇▇▇▇'▇ at the time of any
deposit therein or (B) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits (as evidenced in writing by the Rating
Agencies that use of any such account as the Distribution Account will not have
an adverse effect on the then-current ratings assigned to the Classes of
Certificates then rated by the Rating Agencies) in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel (obtained by the Person
requesting that the account be held pursuant to this clause (i)) delivered to
the Securities Administrator prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall mature not later
than the Business Day immediately preceding the Distribution Date next following
the date of investment in such collateral or the Distribution Date if such
Permitted Investment is an obligation of the institution that maintains the
Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with which
such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the NIMs Insurer
and the Rating Agencies (as evidenced by a letter from each Rating Agency that
use of any such account as the Distribution Account will not have an adverse
effect on the then-current ratings assigned to the Classes of the Certificates
then rated by the Rating Agencies). Eligible Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the three (or four, in the case of a "designated
transaction") highest generic rating categories by at least one of the Rating
Agencies.
ERISA Restricted Certificates: The Class C and the Class P Certificates and
any other Certificate, as long as the acquisition and holding of such
Certificate is not covered by and exempt under an underwriter's exemption.
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Event of Default: An event of default described in Section 8.01.
Excess Interest: On any Distribution Date, for the Senior Certificates,
Class M and Class B Certificates, the excess, if any, of (1) the amount of
interest such Class of Certificates is entitled to receive on such Distribution
Date over (2) the amount of interest such Class of Certificates would have been
entitled to receive on such Distribution Date at an interest rate equal to the
REMIC Pass-Through Rate.
Excess Liquidation Proceeds: To the extent that such amount is not required
by law to be paid to the related Mortgagor, the amount, if any, by which
Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the sum
of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the last day of
the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extra Principal Distribution Amount: With respect to any Distribution Date,
(1) prior to the Stepdown Date, the excess, if any, of (A) the sum of (x) the
aggregate Class Certificate Balance of the Certificates (other than the Class C
Certificates) reduced by the Principal Funds with respect to such Distribution
Date and (y) $3,902,278 over (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (2) on and after the Stepdown
Date, the excess, if any, of (A) the sum of (x) the aggregate Class Certificate
Balance of the Certificates (other than the Class C Certificates) reduced by the
Principal Funds with respect to such Distribution Date and (y) the greater of
(a) 1.60% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (b) the Minimum Required Overcollateralization Amount
over (B) the aggregate Stated Principal Balance of the Mortgage Loans; provided,
however, that if on any Distribution Date a Stepdown Trigger Event is in effect,
the Extra Principal Distribution Amount will not be reduced to the applicable
percentage of then-current aggregate Stated Principal Balance of the Mortgage
Loans (and will remain fixed at the applicable percentage of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date immediately
prior to the Stepdown Trigger Event) until the next Distribution Date on which
the Stepdown Trigger Event is not in effect.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer or the Depositor pursuant to this Agreement, including but not limited
to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Securities Administrator, shall not, obtain reimbursement or indemnification
from any other Person.
▇▇▇▇▇▇ ▇▇▇: Federal National Mortgage Association or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
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Final Certification: The certification substantially in the form of Exhibit
Two to the Custodial Agreement.
Fitch: Fitch Ratings or its successor in interest.
Floating Rate Certificate Carryover: With respect to a Distribution Date,
in the event that the Certificate Rate for a class of Senior, Class M or Class B
Certificates is based upon the related Available Funds Cap or the related
Maximum Rate Cap, the sum of (A) the excess of (1) the amount of interest that
such Class would have been entitled to receive on such Distribution Date had the
Certificate Rate for that Class not been calculated based on the related
Available Funds Cap or the related Maximum Rate Cap, up to but not exceeding the
greater of (a) the related Maximum Rate Cap or (b) the sum of (i) the related
Available Funds Cap and (ii) the product of (AA) a fraction, the numerator of
which is 360 and the denominator of which is the actual number of days in the
related Accrual Period and (BB) the sum of (x) the quotient obtained by dividing
(I) an amount equal to the proceeds, if any, payable under the related Corridor
Contract with respect to such Distribution Date by (II) the aggregate Class
Certificate Balance of each of the Classes of Certificates to which such
Corridor Contract relates for such Distribution Date and (y) the quotient
obtained by dividing (I) an amount equal to any Net Swap Payments owed by the
Swap Counterparty for such Distribution Date by (II) the aggregate Stated
Principal Balance of the Mortgage Loans as of the immediately preceding
Distribution Date over (2) the amount of interest such Class was entitled to
receive on such Distribution Date based on the related Available Funds Cap, (B)
the unpaid portion of any such excess from prior Distribution Dates (and
interest accrued thereon at the then applicable Certificate Rate for such class,
without giving effect to the related Available Funds Cap or the related Maximum
Rate Cap) and (C) any amount previously distributed with respect to Floating
Rate Certificate Carryover for such Class that is recovered as a voidable
preference by a trustee in bankruptcy.
Form 8-K Disclosure Information: As defined in Section 3.18(a).
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GreenPoint: GreenPoint Mortgage Funding, Inc., or any successor thereto.
GreenPoint Assignment Agreement: The Assignment, Assumption and Recognition
Agreements, each dated as of April 1, 2007, among GreenPoint, the Depositor and
the Sponsor pursuant to which the GreenPoint Servicing Agreement and the rights
of the Sponsor thereunder (other than the rights to enforce the representations
and warranties with respect to the GreenPoint Loans) were assigned to the
Depositor for the benefit of the Certificateholders.
GreenPoint Loans: The Mortgage Loans serviced by GreenPoint pursuant to the
GreenPoint Servicing Agreement.
GreenPoint Servicing Agreement: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of October 1, 2006, between the Depositor and
GreenPoint.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the
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related Index on each Interest Adjustment Date to determine (subject to
rounding, the minimum and maximum Mortgage Interest Rate and the Periodic Rate
Cap) the Mortgage Interest Rate until the next Interest Adjustment Date.
Group 1 Certificates: The Class A-1 and Class R Certificates.
Group 1 Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group 1 Net WAC: The Net WAC of Loan Group 1.
Group 1 Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Class Certificate Balance of the
Class A-1 and Class R Certificates and (ii) the product of (x) the Group 1
Principal Distribution Percentage and (y) the Senior Principal Distribution
Amount; provided, however, that (A) with respect to any Distribution Date on
which the Class A-1 and Class R Certificates are outstanding and the Class
Certificate Balances of the Class A-2 Certificates is reduced to zero, the Group
2 Principal Distribution Percentage of the Senior Principal Distribution Amount
in excess of the amount necessary to reduce the Class Certificate Balance of the
Class A-2 Certificates to zero will be applied to increase the Group 1 Principal
Distribution Amount and (B) with respect to any Distribution Date thereafter,
the Group 1 Principal Distribution Amount will equal the Senior Principal
Distribution Amount.
Group 1 Principal Distribution Percentage: With respect to any Distribution
Date, a fraction expressed as a percentage, the numerator of which is the amount
of Principal Funds received with respect to the Group 1 Mortgage Loans and the
denominator of which is the amount of Principal Funds received from all of the
Mortgage Loans.
Group 2 Certificates: The Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates.
Group 2 Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group 2 Net WAC: The Net WAC of Loan Group 2.
Group 2 Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Class Certificate Balance of the
Class A-2 Certificates and (ii) the product of (x) the Group 2 Principal
Distribution Percentage and (y) the Senior Principal Distribution Amount;
provided, however, that (A) with respect to any Distribution Date on which the
Class A-2 Certificates are outstanding and the Class Certificate Balances of the
Class A-1 and Class R Certificates is reduced to zero, the Group 1 Principal
Distribution Percentage of the Senior Principal Distribution Amount in excess of
the amount necessary to reduce the Class Certificate Balance of the Class A-1
Certificates and Class R Certificates to zero will be applied to increase the
Group 2 Principal Distribution Amount and (B) with respect to any Distribution
Date thereafter, the Group 2 Principal Distribution Amount will equal the Senior
Principal Distribution Amount.
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Group 2 Principal Distribution Percentage: With respect to any Distribution
Date, a fraction expressed as a percentage, the numerator of which is the amount
of Principal Funds received with respect to the Group 2 Mortgage Loans and the
denominator of which is the amount of Principal Funds received from all of the
Mortgage Loans.
Indemnified Persons: The Trustee, the Master Servicer, the Servicers, the
Depositor, the NIMs Insurer and the Securities Administrator and their officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
Indenture: An indenture relating to the issuance of the NIM Notes, which
may be guaranteed by the NIMs Insurer.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Class Certificate Balance: With respect to any Regular Certificate,
the amount designated "Initial Class Certificate Balance" on the face thereof.
Initial Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: Any of the Class A-1 Interest Carry Forward
Amount, the Class A-2A Interest Carry Forward Amount, the Class A-2B Interest
Carry Forward Amount, the Class A-2C Interest Carry Forward Amount, the Class
A-2D Interest Carry Forward Amount, the Class R Interest Carry Forward Amount,
the Class M-1 Interest Carry Forward Amount, the Class M-2 Interest Carry
Forward Amount, the Class M-3 Interest Carry Forward Amount, the Class M-4
Interest Carry Forward Amount, the Class M-5 Interest Carry Forward Amount, the
Class M-6 Interest Carry Forward Amount, the Class B-1 Interest Carry Forward
Amount, the Class B-2 Interest Carry Forward Amount, the Class B-3 Interest
Carry Forward Amount or the Class C Interest Carry Forward Amount, as the case
may be.
Interest Determination Date: Each date that is the second LIBOR Business
Day preceding the commencement of each Accrual Period for the Certificates.
Interest Funds: With respect to any Distribution Date and the Mortgage
Loans, the sum, without duplication, of (1) all scheduled interest due during
the related Due Period that is received before the related Servicer Remittance
Date less the Servicing Fee and the mortgage insurance premiums, (2) all
Advances relating to interest, (3) all Compensating Interest Payments, (4)
liquidation proceeds collected during the related Prepayment Period (to the
extent such liquidation proceeds relate to interest), (5) proceeds of any
Mortgage Loan purchased by the Depositor or any transferor under the Pooling and
Servicing Agreement during the related Prepayment Period for document defects,
breach of a representation or warranty, realization upon default or optional
termination (to the extent such proceeds relate to interest) and (6) Prepayment
Charges received with respect to the related Prepayment Period, less all
non-recoverable Advances relating to interest and certain indemnification
amounts, expenses reimbursed to the Trustee, the Custodians, Securities
Administrator, Master Servicer and the Servicers.
Investor Representation Letter: As defined in Section 5.02(b).
Issuing Entity: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3.
Latest Possible Maturity Date: With respect to the Certificates, the
Distribution Date in April 2037.
LIBOR Business Day: Any day on which banks in the City of London, England
and New York City, U.S.A. are open and conducting transactions in foreign
currency and exchange.
LIBOR Certificates: Any of the Certificates (other than the Class C and
Class P Certificates).
Liquidated Mortgage Loan: Any defaulted Mortgage Loan (including any REO
Property) as to which the related Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
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Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, cash received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise, and amounts received through
Insurance Proceeds and condemnation proceeds.
Loan Group: Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: The group of Mortgage Loans designated as belonging to Loan
Group 1 on the Mortgage Loan Schedule.
Loan Group 2: The group of Mortgage Loans designated as belonging to Loan
Group 2 on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Lower Tier REMIC: As described in the Preliminary Statement and Section
9.12.
Lower Tier REMIC Interests: Each of the Class LTA-1 Interest, the Class
LTA-2A Interest, the Class LTA-2B Interest, the Class LTA-2C Interest, the Class
LTA-2D Interest, the Class LTM-1 Interest, the Class LTM-2 Interest, the Class
LTM-3 Interest, the Class LTM-4 Interest, the Class LTM-5 Interest, the Class
LTM-6 Interest, the Class LTB-1 Interest, the Class LTB-2 Interest, the Class
LTB-3 Interest, the Class LTIX Interest, the Class LTIIX Interest, the Class
LTII1A Interest, the Class LTII1B Interest, the Class LTII2A Interest, the Class
LTII2B Interest, the Class LT-IO Interest and the Class LTR Interest.
Lower Tier REMIC I Marker Interests: Each of the classes of Lower Tier
REMIC Regular Interests other than the Class LTIX Interest, the Class LTIIX
Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class LTII2A
Interest, the Class LTII2B Interest, and the Class LT-IO Interest.
Lower Tier REMIC II Marker Interests: Each of the Class LTII1A Interest,
the Class LTII1B Interest, the Class LTII2A Interest and the Class LTII2B
Interest.
Lower Tier REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier REMIC Subordinated Balance Ratio: The ratio among (i) the
principal balance of the Class LTII1A Interest and (ii) the principal balance of
the Class LTII2A Interest that is equal to the ratio among (i) the excess of (A)
the aggregate Stated Principal Balance of the
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Group 1 Mortgage Loans over (B) the current Class Certificate Balance of the
Class A-1 and Class R Certificates and (ii) the excess of (A) the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans over (B) the current
Class Certificate Balance of the Class A-2 Certificates.
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A. including any successors in
interest who meet the qualifications for a master servicer set forth in this
Agreement, and any successor master servicer appointed hereunder.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "▇▇▇▇▇ Fargo
Bank, National Association as Master Servicer for HSBC Bank USA, National
Association, as Trustee f/b/o holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-A3 - Master Servicer
Collection Account." The Master Servicer Collection Account shall be an Eligible
Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Maximum Rate Cap: Any of the Class A-1 Maximum Rate Cap, Class A-2 Maximum
Rate Cap or the Weighted Average Maximum Rate Cap.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
MLML: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc., a Delaware corporation, or any
successor in interest.
Monthly Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or the
Master Servicer pursuant to Section 6.04.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
related Servicer pursuant to related Servicing Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
Monthly Statement: The statement distributed to Certificateholders pursuant
to Section 6.03.
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Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note, which rate
is equal to the "Mortgage Interest Rate" set forth with respect thereto on the
Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of April 1, 2007, between the Sponsor and the Depositor, as purchaser,
and all amendments thereof and supplements thereto, attached hereto as Exhibit
J.
Mortgage Loan Schedule: The Mortgage Loan Schedule, attached hereto as
Exhibit B, with respect to the Mortgage Loans and as amended from time to time
to reflect the repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Cashflow: Any Interest Funds and Principal Funds not otherwise
required to be distributed with respect to principal of and interest on the
Certificates and not otherwise required to be distributed to the Class P
Certificates.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
related Servicer or the Master Servicer in accordance with the related Servicing
Agreement or this Agreement and (ii) unreimbursed advances by the related
Servicer or the Master Servicer and Monthly Advances.
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Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate and the
rate paid to mortgage insurance providers (each expressed as a per annum rate).
Net Rate: The per annum rate set forth in footnote 8 to the description of
the Lower Tier REMIC in the Preliminary Statement hereto (such rate being based
on the weighted average of the interest rates on the SWAP REMIC Regular
Interests as adjusted and as set forth in such footnote).
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment or Defaulted Swap Termination Payment)
made by the Supplemental Interest Trust to the Swap Counterparty on the related
Fixed Rate Payer Payment Date (as defined in the Swap Agreement) or made by the
Swap Counterparty to the Supplemental Interest Trust on the related Floating
Rate Payer Payment Date (as defined in the Swap Agreement). In each case, the
Net Swap Payment shall not be less than zero.
Net WAC: With respect to any Distribution Date and for any Loan Group, the
weighted average Net Mortgage Rate for the Mortgage Loans in such Loan Group
calculated based on the respective Net Mortgage Rates and the Stated Principal
Balances of such Mortgage Loans as of the preceding Distribution Date (or, in
the case of the first Distribution Date, as of the Cut-off Date).
NIMs Insurer: Any of the one or more insurers, if any, that may be
guaranteeing certain payments under any NIM Notes; provided, that upon the
payment in full of the NIM Notes, all rights of the NIMs Insurer hereunder shall
terminate.
NIMs Insurer Default: As defined in Section 11.14.
Offered Certificate: Any Senior Certificate or Subordinate Certificate
issued hereunder.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate determined by
the Securities Administrator on the related Interest Determination Date on the
basis of (1) the offered rates for one-month United States dollar deposits from
Reuters, as of 11:00 a.m. (London time) on such Interest Determination Date (or
if such service is no longer offered, such other service for displaying LIBOR or
comparable rates as may be reasonably selected by the Securities Administrator)
or (2) if such rate does not appear on Reuters as of 11:00 a.m. (London time),
the Securities Administrator will determine such rate on the basis of the
offered rates of the Reference Banks for one-month United States dollar
deposits, as such rates appear on the Reuters Screen LIBO Page, as of 11:00 a.m.
(London time) on such Interest Determination Date:
(i) If on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall
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be the arithmetic mean of such offered quotations (rounded upwards if
necessary to the nearest whole multiple of 0.03125%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i) One-Month LIBOR as determined on
the previous Interest Determination Date and (ii) the Reserve Interest
Rate.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination: The termination hereunder of that portion of the
Trust Fund related to the Certificates pursuant to Section 10.01(a) hereof.
Optional Termination Amount: The amount received by the Securities
Administrator in connection with any purchase of all of the Mortgage Loans and
REO Properties pursuant to Section 10.01(b) hereof.
Optional Termination Price: On any date after the Initial Optional
Termination Date, an amount equal to the sum of (A) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that has
become an REO Property) as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Interest Rate as of the Due Date
preceding the Distribution Date on which the proceeds of the Optional
Termination are distributed to Certificateholders and the fair market value of
any REO Property, plus accrued interest thereon as of the Distribution Date on
which the proceeds of the Optional Termination are distributed to
Certificateholders, (B) any unreimbursed out-of-pocket costs, fees and expenses
and indemnity amounts owed to the Master Servicer, the Trustee or the Securities
Administrator (including any amounts incurred by the Securities Administrator in
connection with conducting the Auction), a Servicer or the Master Servicer and
any unpaid or unreimbursed Servicing Fees, Monthly Advances and Servicing
Advances, (C) any unreimbursed costs, penalties and/or damages incurred by the
Trust Fund in connection with any violation relating to any of the Mortgage
Loans of any predatory or abusive lending law, (D) in the event an Auction has
been conducted, all reasonable fees and expenses incurred by the Securities
Administrator to conduct the Auction and (E) any unpaid Net Swap Payments, any
Swap Termination Payment and any other amounts owed to the Swap Counterparty and
determined in accordance with the Swap Agreement.
Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
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Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Overcollateralization Amount: As of any date of determination, the excess
of (1) the Stated Principal Balance of the Mortgage Loans over (2) the Class
Certificate Balance of the Certificates (other than the Class P Certificates and
the Class C Certificates).
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Percentage Interest: With respect to any Certificate (other than the Class
R and Class P Certificates), a fraction, expressed as a percentage, the
numerator of which is the Initial Class Certificate Balance represented by such
Certificate and the denominator of which is the Initial Class Certificate
Balance of the related Class. With respect to the Class R and Class P
Certificates, the Percentage Interest evidenced thereby shall be as specified on
the face thereof, or otherwise, be equal to 100%.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders (provided that such obligation or security must be a
"permitted investment" within the meaning of such term as provided for in
Section 860G(a)(5) of the Code):
(i) direct obligations of, and obligations the timely payment of which
are fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating
Agency and (b) any other demand or time deposit or certificate of deposit
that is fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of
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the United States of America, the obligations of which are backed by the
full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company (acting as
principal) described in clause (ii)(a) above where the Trustee holds the
security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee, the Securities Administrator or the
Master Servicer or its Affiliates) incorporated under the laws of the
United States of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the time of such
investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investments therein
will cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Issuing Entity to exceed 10% of
the aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Issuing Entity;
(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 one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee, the Securities
Administrator or Master Servicer;
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each such Rating Agency), including any such fund for which the Trustee,
Securities Administrator or Master Servicer or any affiliate of the
Trustee, Securities Administrator or Master Servicer acts as a manager or
an advisor; provided, however, that no instrument or security shall be a
Permitted Investment if such instrument or security evidences a right to
receive only interest payments with respect to the obligations underlying
such instrument or if such security provides for payment of both principal
and interest with a yield to maturity in excess of 120% of the yield to
maturity at par or if such instrument or security is purchased at a price
greater than par; and
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if S&P is a Rating Agency,
"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations
are backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations.
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Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
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.
PHH: PHH Mortgage Corporation, or any successor thereto.
PHH Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of April 1, 2007, among PHH, the Depositor and the Sponsor
pursuant to which the PHH Servicing Agreement and the rights of the Sponsor
thereunder (other than the rights to enforce the representations and warranties
with respect to the PHH Loans) were assigned to the Depositor for the benefit of
the Certificateholders.
PHH Loans: The Mortgage Loans serviced by PHH pursuant to the PHH Servicing
Agreement.
PHH Servicing Agreement: The Mortgage Loan Flow Purchase, Sale and
Servicing Agreement, dated as of March 27, 2001, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Capital, Inc., PHH and ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust.
Physical Certificate: The Residual Certificate.
Pooling and Servicing Agreement: The Pooling and Servicing Agreement
relating to the Mortgage Pass-Through Certificates, MANA Series 2007-A3.
Posted Collateral: As defined in the Swap Agreement.
Prepayment Charge: With respect to any Prepayment Period, any prepayment
premium, charge or other amount payable by a Mortgagor in connection with any
Principal Prepayment on the Prepayment Charge Mortgage Loans.
Prepayment Charge Mortgage Loans: Any of the Mortgage Loans that are
subject to existing prepayment premiums.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property) that was the
subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 6.05.
Prepayment Period: With respect to each Servicer, as set forth in the
applicable Servicing Agreement.
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Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Accrual Period for such Class relating to a
Distribution Date.
Principal Distribution Amount: with respect to each Distribution Date, the
sum of (1) the Principal Funds for such Distribution Date and (2) any Extra
Principal Distribution Amount for such Distribution Date.
Principal Funds: means, with respect to any Distribution Date and the
Mortgage Loans, the sum, without duplication, of (1) the scheduled principal due
during the related Due Period and received before the related Servicer
Remittance Date or advanced on or before the related Servicer Remittance Date,
(2) prepayments of principal collected in the related Prepayment Period, (3) the
Stated Principal Balance of each Mortgage Loan that was purchased by the
Depositor or the Servicer during the related Prepayment Period or, in the case
of a purchase in connection with an optional termination, on the Business Day
prior to such Distribution Date, (4) the amount, if any, by which the aggregate
unpaid principal balance of any replacement Mortgage Loans is less than the
aggregate unpaid principal balance of any Mortgage Loans delivered by the
Sponsor in connection with a substitution of a Mortgage Loan, (5) all
liquidation proceeds collected during the related Prepayment Period (to the
extent such liquidation proceeds related to principal), (6) all Subsequent
Recoveries applicable to the related Prepayment Period and (7) all other
collections and recoveries in respect of principal applicable to the related
Prepayment Period less (A) all non-recoverable Advances relating to principal
and all non-recoverable Servicing Advances reimbursed applicable to the related
Prepayment Period and (B) indemnification amounts and expenses reimbursable to
the Trustee, Custodians, Securities Administrator, Master Servicer and the
Servicer hereunder.
Principal Prepayment: Any Principal Prepayment in Full or Curtailment or
other recovery of principal on a Mortgage Loan which is received in advance of
its scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Prospectus Supplement: The Prospectus Supplement dated April 26, 2007,
relating to the public offering of the Offered Certificates.
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Protected Account: An account established and maintained for the benefit of
Certificateholders by each Servicer with respect to the related Mortgage Loans
and with respect to REO Property pursuant to the respective Servicing Agreement.
The Protected Account shall be an Eligible Account.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
related Servicer or Master Servicer, which payment or advance had as of the date
of purchase been distributed to Certificateholders, through the end of the
calendar month in which the purchase is to be effected less any unreimbursed
Monthly Advances and any unpaid Servicing Fees payable to the purchaser of the
Mortgage Loan and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
Qualified Servicer: Any servicer with a servicer rating by each of the
Rating Agencies equal to or better than the servicer rating of PHH Mortgage
Corporation at the time of any such servicing transfer.
Rating Agencies: Moody's and S&P.
Rating Agency Condition: As defined in the Swap Agreement.
Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any, by which the aggregate Class Certificate Balance of the Certificates after
distributions of principal on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Mortgage Loans as of such Distribution Date.
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs (or the Closing Date in the case of the first Distribution Date).
Regular Certificates: Any of the Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class
A-2C, Class A-2D, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class B-1, Class B-2 or Class B-3 Certificates.
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Regulation AB: Subpart 22.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506-1,631 (January 7, 2005) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
each of the Rating Agencies, from a bank, insurance company or other corporation
or entity (including the Trustee).
Related Certificates: For each interest in the Upper Tier REMIC, the Class
of Certificates listed on the same row in the table entitled "Upper Tier REMIC"
in the Preliminary Statement.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit K hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or a
Servicer, the term "Relevant Servicing Criteria" may refer to one or more
discrete functions specified in the Relevant Servicing Criteria applicable to
such parties.
Relief Act: The Servicemembers Civil Relief Act, as amended, or similar
state statute.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly Payment
or portion thereof has been reduced or postponed due to the application of the
Relief Act.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement and Section 9.12.
REMIC 1: Not applicable.
REMIC 1 Interest: Not applicable.
REMIC 1 Regular Interest: Not applicable.
REMIC 1 Subordinate Balance Ratio: Not applicable.
REMIC 2: Not applicable.
REMIC 2 Interest: Not applicable.
REMIC 2 Regular Interest: Not applicable.
REMIC Opinion: An Opinion of Counsel to the effect that a contemplated
action will neither adversely affect the status as a REMIC of any REMIC created
hereunder nor subject any such REMIC to any tax under the REMIC Provisions.
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REMIC Pass-Through Rate: In the case of a Class of the Senior Certificates,
Class M Certificates and Class B Certificates, the Upper Tier REMIC Net WAC Cap
for the Corresponding REMIC Regular Interest.
REMIC Provisions: The 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, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC Regular Interests: Each of the interests in the Upper Tier REMIC as
set forth in the Preliminary Statement other than the Residual Interest.
REMIC Swap Rate: For each Distribution Date (and the related Accrual
Period), a per annum rate equal to the Fixed Rate under the Swap Agreement for
such Distribution Date, as set forth in the Prospectus Supplement.
REO Property: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.15 in connection with a defaulted
Mortgage Loan.
Reportable Event: As defined in Section 3.18(a).
Reporting Servicer: As defined in Section 3.18(h).
Repurchase Proceeds: The Repurchase Price in connection with any repurchase
of a Mortgage Loan by the Sponsor and any cash deposit in connection with the
substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
Required Percentage: With respect to a Distribution Date, the quotient of
(x) the excess of (1) the aggregate Stated Principal Balance of the Mortgage
Loans as of the prior Distribution Date, prior to giving effect to distributions
to be made on such Distribution Date over (2) the Class Certificate Balance of
the most senior class of Certificates outstanding as of such Distribution Date,
prior to giving effect to distributions to be made on such Distribution Date,
and (y) the aggregate Stated Principal Balances of the Mortgage Loans as of the
prior Distribution Date, prior to giving effect to distributions to be made on
such Distribution Date. As used herein, the Class Certificate Balance of the
most senior class of Certificates will equal the aggregate Class Certificate
Balance of the Senior Certificates as of such date of calculation.
Reserve Interest Rate: The rate per annum that the Securities Administrator
determines to be either (1) the arithmetic mean (rounded upwards if necessary to
the nearest whole multiple of 0.03125%) of the one-month United States dollar
lending rates which New York City banks
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selected by the Securities Administrator are quoting on the relevant Interest
Determination Date to the principal London offices of leading banks in the
London interbank market or (2) in the event that the Securities Administrator
can determine no such arithmetic mean, the lowest one-month United States dollar
lending rate which New York City banks selected by the Securities Administrator
are quoting on such Interest Determination Date to leading European banks.
Residual Certificate: The Class R Certificate.
Residual Interest: An interest in the Upper Tier REMIC that is entitled to
all distributions of principal and interest on the Class R Certificate other
than (i) distributions in respect of the Class SWR Interest and the Class LTR
Interest and (ii) distributions on the Class R Certificate in respect of Excess
Interest.
Responsible Officer: Any officer assigned to the Corporate Trust Office (or
any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Securities Administrator customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any other officer
of the Securities Administrator to whom a matter arising hereunder may be
referred because of such officers familiarity with the subject matter thereof.
When used with respect to the Trustee, any officer in the corporate trust
department or similar group of the Trustee with direct responsibility for the
administration of this Agreement and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
Reuters: Reuters Monitor Money Rates Service.
Reuter's Screen LIBO Page: means the display designated as page "LIBO" on
Reuters (or such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks).
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: A written certification signed by an officer
of the Master Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act is amended,
(b) the Rules referred to in clause (ii) are modified or superseded by any
subsequent statement, rule or regulation of the Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous that then form of the
required certification as of the Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
shall be as agreed to by the Master Servicer and the Depositor following a
negotiation in good faith to determine how to comply with any such new
requirements.
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S&P: Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or
its successor in interest.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A., or any successor in
interest, or any successor securities administrator appointed as herein
provided.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Senior Certificates: Any of the Class A-1 Certificates, the Class A-2
Certificates and the Class R Certificates.
Senior Class Certificate Balance: As of any date of determination, the sum
of the Class A-1 Class Certificate Balance, the Class A-2A Class Certificate
Balance, the Class A-2B Class Certificate Balance, the Class A-2C Class
Certificate Balance, the Class A-2D Class Certificate Balance and the Class R
Class Certificate Balance.
Senior Principal Distribution Amount: (1) With respect to any Distribution
Date prior to the related Stepdown Date or as to which a Stepdown Trigger Event
exists, 100% of the Principal Distribution Amount for such Distribution Date and
(2) with respect to any Distribution Date on or after the Stepdown Date and as
to which a Stepdown Trigger Event does not exist, the excess of (A) the Class
Certificate Balance of the Senior Certificates immediately prior to such
Distribution Date over (B) the lesser of (i) 88.10% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (ii)
the excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount;
provided, however, that in no event will the Senior Principal Distribution
Amount with respect to any Distribution Date exceed the aggregate Class
Certificate Balance of the Senior Certificates.
Servicer: With respect to each Mortgage Loan, CitiMortgage, GreenPoint, PHH
or Wilshire, as applicable, and as specified on the Mortgage Loan Schedule.
Servicer Remittance Date: With respect to each Mortgage Loan, the date set
forth in the related Servicing Agreement.
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Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by a Servicer of its servicing
obligations, including, but not limited to, the cost of (1) the preservation,
inspection, restoration and protection of a Mortgaged Property, including
without limitation advances in respect of prior liens, real estate taxes and
assessments, (2) any collection, enforcement or judicial proceedings, including
without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property, (4)
executing and recording instruments of satisfaction, deeds of reconveyance,
substitutions of trustees on deeds of trust or Assignments of Mortgage to the
extent not otherwise recovered from the related Mortgagors or payable under the
related Servicing Agreement, (5) correcting errors of prior servicers; costs and
expenses charged to such Servicer by the Trustee; tax tracking; title research;
flood certifications; and lender paid mortgage insurance and (6) obtaining or
correcting any legal documentation required to be included in the Mortgage Files
and reasonably necessary for a Servicer to perform its obligations under the
related Servicing Agreement.
Servicing Agreements: The CitiMortgage Servicing Agreement, the GreenPoint
Servicing Agreement, the PHH Servicing Agreement and the Wilshire Servicing
Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the preceding Distribution Date and (ii) the applicable Servicing Fee
Rate. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respectively which any related interest payment on a
Mortgage Loan is computed. If the Index and/or Gross Margin are adjusted as
provided in the related Mortgage Note, the Servicing Fee shall be the rate per
annum in effect immediately prior to such adjustment.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth
in the Mortgage Loan Schedule.
Servicing Function Participant: Any Sub-Servicer, Subcontractor or any
other Person, engaged by a Servicer, the Custodian, the Master Servicer, the
Paying Agent, the Securities Administrator and the Trustee.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
names and specimen signatures appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may be amended from time to
time.
Servicing Rights Owner: With respect to the Wilshire Loans and PHH Loans,
MLML, or its transferee or assignee, in its capacity as owner of the servicing
rights.
Significance Estimate: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be an amount determined based
on the reasonable good-faith estimate by the Depositor or its affiliate (and
reported to the Securities Administrator) of the
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aggregate maximum probable exposure of the outstanding Certificates to the Swap
Agreement and the Corridor Contracts, as applicable.
Significance Percentage: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be a percentage equal to the
Significance Estimate divided by the aggregate outstanding Stated Principal
Balance of the Mortgage Loans, prior to the distribution of the Principal
Distribution Amount on such Distribution Date.
Sponsor: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc., a Delaware corporation, or
any successor in interest.
Startup Day: The Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan and
Distribution Date, the unpaid principal balance of such Mortgage Loan as of the
Due Date in the related Due Period, as specified in the amortization schedule at
the time relating thereto (before any adjustment to such amortization schedule
by reason of any moratorium or similar waiver or grace period), after giving
effect to any previous partial prepayments and Liquidation Proceeds received and
to the payment of principal due on such Due Date and irrespective of any
delinquency in payment by the related Mortgagor. With respect to any Mortgage
Loan and the Cut-off Date, the Cut-off Date Principal Balance thereof.
Stepdown Date: The earlier of: (A) the first Distribution Date on which the
aggregate Class Certificate Balance of the Senior Certificates has been reduced
to zero; and (B) the later to occur of (1) the Distribution Date in May 2010 or
(2) the first Distribution Date on which the Class Certificate Balance of the
Senior Certificates (after giving effect to distributions of the Principal Funds
amount for such Distribution Date) is less than or equal to 88.10% of the
aggregate Stated Principal Balances of the Mortgage Loans.
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Stepdown Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution Date set forth in the following
table:
DISTRIBUTION DATE STEPDOWN REQUIRED
OCCURRING IN LOSS PERCENTAGE
----------------- -----------------
May 2009 -- April 2010 0.25% with respect to May 2009, plus an additional
1/12th of 0.30% for each month thereafter
May 2010 -- April 2011 0.55% with respect to May 2010, plus an additional
1/12th of 0.40% for each month thereafter
May 2011 -- April 2012 0.95% with respect to May 2011, plus an additional
1/12th of 0.45% for each month thereafter
May 2012 -- April 2013 1.40% with respect to May 2012, plus an additional
1/12th of 0.25% for each month thereafter
May 2013 and thereafter 1.60%
Stepdown Trigger Event: The situation that exists with respect to any
Distribution Date on or after the Stepdown Date, if (a) the quotient (measured
on a rolling three-month basis) of (1) the aggregate Stated Principal Balance of
all Mortgage Loans 60 or more days delinquent (including Mortgage Loans in
foreclosure, REO properties and Mortgage Loans with respect to which the
applicable mortgagor is in bankruptcy) and (2) the Stated Principal Balance of
all of the Mortgage Loans as of the preceding Servicer Remittance Date, equals
or exceeds the product of (i) 40.00% and (ii) the Required Percentage or (b) the
quotient (expressed as a percentage) of (1) the aggregate Realized Losses
incurred from the Cut-off Date through the last day of the calendar month
preceding such Distribution Date and (2) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date exceeds the Stepdown Required Loss
Percentage. For purposes hereof, for any Distribution Date, the calculation of
"rolling three-month basis" requires first, the calculation of the quotient
described in (a) of this definition for each of the three (3) Due Periods
immediately prior to such Distribution Date, second, the addition of such 3
quotients and third, dividing the sum of such 3 quotients by 3.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of any Servicer (or a
Sub-Servicer of any Servicer), the Master Servicer, the Trustee, the Custodian
or the Securities Administrator.
Subordinate Certificate Corridor Contract: means a confirmation and
agreement including the schedule thereto between the Securities Administrator on
behalf of the Issuing Entity and the Cap Contract Counterparty for the benefit
of the Subordinate Certificates.
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Subordinate Certificate Corridor Contract Notional Balance: With respect to
any Distribution Date, the Subordinate Certificate Corridor Contract Notional
Balance set forth for such Distribution Date in the Subordinate Certificate
One-Month LIBOR Corridor Table attached hereto as Exhibit H-3.
Subordinate Certificates Lower Collar: With respect to each Distribution
Date, the applicable per annum rate set forth under the heading "1ML Strike
Lower Collar" in the Subordinate Certificate One-Month LIBOR Corridor Table (set
forth on Exhibit H-3).
Subordinate Certificates Upper Collar: With respect to each Distribution
Date with respect to which payments are received on the Subordinate Certificate
Corridor Contract, a rate equal to the lesser of One-Month LIBOR and 8.690% per
annum.
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of a
Servicer, and is responsible for the performance (whether directly or through
sub-servicers or Subcontractors) of servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any sub-servicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitute Mortgage Loan: With respect to any Mortgage Loan, which is
tendered to the Trustee pursuant to the related Servicing Agreement, the related
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in each case, (i) which has an Outstanding Principal Balance not
greater nor materially less than the Mortgage Loan for which it is to be
substituted; (ii) which has a Mortgage Interest Rate and Net Rate not less than,
and not materially greater than, such Mortgage Loan; (iii) which has a maturity
date not materially earlier or later than such Mortgage Loan and not later than
the latest maturity date of any Mortgage Loan; (iv) which is of the same
property type and occupancy type as such Mortgage Loan; (v) which has a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) which is current in payment of principal and interest as of the date
of substitution; (vii) as to which the payment terms do not vary in any material
respect from the payment terms of the Mortgage Loan for which it is to be
substituted and (viii) which has a Gross Margin, Periodic Rate Cap and Maximum
Lifetime Mortgage Rate no less than those of such Mortgage Loan, has the same
Index and interval between Interest Adjustment Dates as such Mortgage Loan, and
a Minimum Lifetime Mortgage Rate no lower than that of such Mortgage Loan.
Subordinate Certificates: Any of the Class M and the Class B Certificates.
Supplemental Interest Trust: The separate trust, established pursuant to
Section 6.01(m) of this Agreement and held by the Securities Administrator for
the benefit of the holders of the Certificates as a segregated subtrust of the
Trust Fund, (i) in which the Swap Agreement will be held and any Swap
Termination Payments or Net Swap Payments received from the Swap Counterparty
will be deposited and (ii) out of which certain distributions to the
Certificateholders
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will be made and any Swap Termination Payments or Net Swap Payments owed to the
Swap Counterparty will be paid.
Supplemental Interest Trust Trustee: ▇▇▇▇▇ Fargo Bank, N.A., a national
banking association, not in its individual capacity, but solely in its capacity
as trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Swap Account: The separate Eligible Account created and maintained by the
Supplemental Interest Trust Trustee pursuant to Section 6.01(m) in the name of
the Supplemental Interest Trust Trustee for the benefit of the Supplemental
Interest Trust and designated "▇▇▇▇▇ Fargo Bank, N.A., as supplemental interest
trust trustee, in trust for registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3." Funds in the Swap Account shall be held in trust
for the Supplemental Interest Trust for the uses and purposes set forth in this
Agreement.
Swap Agreement: The confirmation and agreement, including the schedule
thereto and the related credit support annex, between the Swap Counterparty and
the trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders (attached as Exhibit R hereto) or any other swap agreement
(including any related schedules) held by the Supplemental Interest Trust
pursuant to Section 6.01(m) hereof.
Swap Agreement Notional Balance: As defined in the Swap Agreement.
Swap Counterparty: The Royal Bank of Scotland plc, or any successor
counterparty who meets the requirements set forth in the Swap Agreement.
Swap LIBOR: With respect to any Distribution Date (and the related Accrual
Period) the product of (i) the Floating Rate Option (as defined in the Swap
Agreement for the related Swap Payment Date), (ii) two and (iii) the quotient of
(a) the actual number of days in the Accrual Period for the Lower Tier REMIC
Interests divided by (b) 30.
Swap Payment Date: For so long as the Swap Agreement is in effect or
amounts remain unpaid thereunder, the Business Day immediately preceding each
Distribution Date.
Swap Posted Collateral Account: The segregated Eligible Account created and
maintained by the Supplemental Interest Trust Trustee pursuant to Section
6.01(m) in the name of the Supplemental Interest Trust Trustee for the benefit
of the Supplemental Interest Trust and designated "▇▇▇▇▇ Fargo Bank, N.A., as
supplemental interest trust trustee, in trust for registered holders of ▇▇▇▇▇▇▇
▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3." Funds in the Swap Posted
Collateral Account shall be held in trust for the Supplemental Interest Trust
for the uses and purposes set forth in the Swap Agreement
SWAP REMIC: As described in the Preliminary Statement.
SWAP REMIC Interests: Each of the interests in the SWAP REMIC as set forth
in the Preliminary Statement.
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SWAP REMIC Regular Interests: Each of the SWAP REMIC Interests other than
the Class SWR Interest.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Counterparty upon termination of the Swap Agreement determined
in accordance with the Swap Agreement.
Tax Matters Person: The Securities Administrator or any successor thereto
or assignee thereof shall serve as tax administrator hereunder and as agent for
the Tax Matters Person. The Holder of the Residual Certificates shall be the Tax
Matters Person for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a certificate.
Transferor Representation Letter: As defined in Section 5.02(b).
Trust Fund: The corpus of the Issuing Entity created pursuant to Article II
of this Agreement.
Trustee: HSBC Bank USA, National Association, or its successor in interest,
or any successor trustee appointed as herein provided.
Uncertificated Class C Interest: An uncertificated REMIC Regular Interest
having the characteristics described in the Preliminary Statement.
Undercollateralized Group: On any Distribution Date, a Mortgage Group
having aggregate Stated Principal Balance which is less than the aggregate Class
Certificate Balance of the Senior Certificates related to such Mortgage Group.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO
Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the related Servicing Agreement, without
regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class R Certificate, no partnership or
other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more such United States Persons have the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart
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E of part I of subchapter J of chapter 1 of the Code), and which was treated as
a United States person on August 20, 1996 may elect to continue to be treated as
a United States person notwithstanding the previous sentence.
Unpaid Realized Loss Amount: With respect to any class of the Subordinate
Certificates and as to any Distribution Date, the excess of (1) Applied Realized
Loss Amounts with respect to such class over (2) the sum of (x) all
distributions in reduction of the Unpaid Applied Realized Loss Amounts on all
previous Distribution Dates and (y) all increases in the Class Certificate
Balance of such class pursuant to the last sentence of the definition of "Class
Certificate Balance." Any amounts distributed to a class of Subordinate
Certificates in respect of any Unpaid Realized Loss Amount will not be applied
to reduce the Class Certificate Balance of such class.
Upper Collar: Any of the Class A-1 Upper Collar, the Class A-2 Upper Collar
or the Subordinate Certificates Upper Collar.
Upper Tier REMIC: As described in the Preliminary Statement and Section
9.12.
Upper Tier REMIC Net WAC Cap: In the case of the Class UTA-1 Interest and
the Residual Interest, a per annum rate equal to the weighted average of the
interest rate of the Class LTII1B Interest for such Distribution Date. In the
case of the Class UTA-2A, Class UTA-2B, Class UTA-2C, Class UTA-2D Interests, a
per annum rate equal to the weighted average of the interest rate for the Class
LTII2B for such Distribution Date. In the case of the Class UTM-1, Class UTM-2,
Class UTM-3, Class UTM-4, Class UTM-5, Class UTM-6, Class UTB-1, Class UTB-2 and
Class UTB-3 Interests, a per annum rate equal to the weighted average of the
interest rates of Class LTII1B and Class LTII2B Interests for such Distribution
Date weighted, respectively, on the basis of the uncertificated principal
balances of the Class LTII1A and the Class LTII2A Interests.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Certificate Balance of
all the Certificates of such Class then outstanding and the denominator of which
is the aggregate Class Certificate Balance of all the Certificates then
outstanding (other than the Class R Certificate). 99.00% of all Voting Rights
will be allocated among all holders of the Certificates (other than the Class R
Certificate) in proportion to their then outstanding Class Certificate Balances,
and 1.00% of the Voting Rights shall be allocated to the Class R Certificate;
provided, however, that any Certificate registered in the name of the Master
Servicer, the Depositor or the Securities Administrator or any of their
respective affiliates shall not be included in the calculation of Voting Rights.
The Class P Certificates shall have no voting rights.
Weighted Average Available Funds Cap: With respect to a Distribution Date,
the per annum rate equal to the weighted average of the Class A-1 Available
Funds Cap and the Class A-2 Available Funds Cap (weighted in proportion to the
results of subtracting from the aggregate Stated Principal Balance of the
related Loan Group, the current Class Certificate Balance of the
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Class A-1 and Class R certificates, in the case of Loan Group 1 or the Class
A-2A, Class A-2B, Class A-2C and Class A-2D certificates, in the case of Loan
Group 2).
Weighted Average Maximum Rate Cap: With respect to a Distribution Date, the
per annum rate equal to the weighted average (weighted in proportion to the
results of subtracting from the aggregate Stated Principal Balance of the
related Loan Group, the current Class Certificate Balance of the Class A-1 and
Class R Certificates, in the case of Loan Group 1 or the Class A-2A, Class A-2B,
Class A-2C and Class A-2D Certificates, in the case of Loan Group 2) of the
Class A-1 Maximum Rate Cap and the Class A-2 Maximum Rate Cap.
▇▇▇▇▇ Fargo: ▇▇▇▇▇ Fargo Bank, N.A., or any successor thereto.
Wilshire: Wilshire Credit Corporation.
Wilshire Servicing Agreement: The Reconstituted Servicing Agreement, dated
as of April 1, 2007, between Wilshire and the Depositor and acknowledged by
▇▇▇▇▇ Fargo, as securities administrator and master servicer, pursuant to which
Wilshire will service the Wilshire Loans for the benefit of the
Certificateholders.
Wilshire Loans: The Mortgage Loans serviced by Wilshire pursuant to the
Wilshire Servicing Agreement.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Issuing Entity without recourse
all its right, title and interest in and to (i) the Mortgage Loans identified in
the Mortgage Loan Schedule, including all interest and principal due with
respect to the Mortgage Loans after the Cut-off Date, but excluding any payments
of principal and interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account, (iii) such
assets relating to the Mortgage Loans as from time to time may be held by the
Servicers in Protected Accounts, the Master Servicer in the Master Servicer
Collection Account and the Securities Administrator in the Distribution Account
for the benefit of the Trustee on behalf of the Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid or payable by
the insurer under any Insurance Policy (to the extent the mortgagee has a claim
thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in
Subsection 2.03(a), (vii) the rights with respect to the
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Servicing Agreements as assigned to the Depositor on behalf of the
Certificateholders by the Assignment Agreements, (viii) the Corridor Contracts
and Corridor Contract Account, (ix) the Swap Agreement and Swap Account and (x)
any proceeds of the foregoing. Although it is the intent of the parties to this
Agreement that the conveyance of the Depositor's right, title and interest in
and to the Mortgage Loans and other assets in the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in the event that
such conveyance is deemed to be a loan, it is the intent of the parties to this
Agreement that the Depositor shall be deemed to have granted to the Trustee a
first priority perfected security interest in all of the Depositor's right,
title and interest in, to and under the Mortgage Loans and other assets in the
Trust Fund, and that this Agreement shall constitute a security agreement under
applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent, the following
documents or instruments
(I) with respect to each Mortgage Loan, other than a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A3, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A3.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
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(ix) the original power of attorney, if applicable.
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(x) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-A3, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(xi) the original duly executed assignment of Security Agreement to
the Trustee;
(xii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(xiii) the acknowledgment copy of the original executed Form UCC-3
with respect to the Security Agreement, indicating the Trustee as the
assignee of the secured party;
(xiv) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(xv) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(xvi) a copy of the recognition agreement;
(xvii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(xviii) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (a)(i) and (b)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or its
Custodian, as applicable, or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Mortgage required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Depositor on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which
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has been transmitted for recording"; and (y) in lieu of the Mortgage, assignment
to the Trustee or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents (as evidenced by a
certification from the Depositor or the Master Servicer, to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and provided, further, however,
that in the case of Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, may deliver to the Trustee or its Custodian, as applicable,
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or its Custodian, as applicable, promptly after they are received. As of
the date hereof, recordation of the assignment of the Mortgage Loans to the
Trustee or the Custodian, as applicable, is not required in any state by either
Rating Agency to obtain the initial rating on the Certificates (upon which
statement the Master Servicer, the Trustee and the Custodian may each
conclusively rely).
If any original Mortgage Note referred to in Section 2.01(b)(I)(i) or
2.01(b)(II)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or its Custodian, as applicable, of a photocopy of such Mortgage Note,
if available, with a lost note affidavit. If any of the original Mortgage Notes
for which a lost note affidavit was delivered to the Trustee or its Custodian,
as applicable, is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or its Custodian, as applicable, within three Business
Days.
(c) The parties hereto agree that it is not intended that any mortgage loan
be included in the Trust Fund that is, without limitation, a "High Cost Loan" as
defined by the Home Ownership and Equity Protection Act of 1994 or any other
applicable anti-predatory lending laws, including but not limited to (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a "High-Cost Home Loan" as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005.
(d) Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge that the functions of the Trustee with respect to the
custody, acceptance, inspection and release of Mortgage Files, including but not
limited to certain insurance policies and documents contemplated by Section 3.12
of this Agreement, and preparation and delivery of the certifications shall be
performed by the Custodian(s) pursuant to the terms and conditions of the
Custodial Agreement(s).
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the Trust
Fund to it by the Depositor and its receipt thereof, subject to further review
and the exceptions which may be noted pursuant to the procedures described
below, and declares that it, or the Custodian
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on its behalf, holds the documents (or certified copies thereof) delivered to it
pursuant to Section 2.01, including four Corridor Contracts (forms of which are
attached hereto as Exhibits N-1, N-2 and N-3), and declares that it will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust Fund delivered to it as Trustee in
trust for the use and benefit of all present and future Holders of the
Certificates. On or before the Closing Date (or, with respect to any Substitute
Mortgage Loan, within five Business Days after the receipt by the Trustee or
Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders and any NIMs Insurer, to review or cause to be reviewed by
the Custodian on its behalf (under the Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver, or cause to be executed and
delivered, to the Depositor and any NIMs Insurer on the Closing Date an Initial
Certification. In conducting such review, the Trustee or Custodian will certify
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
(i) all documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(iii)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent the Trustee or the Custodian on its
behalf has actual knowledge that such documents exist, (ii) such documents have
been reviewed by it and are not torn, mutilated, defaced or otherwise altered
(except if initialed by the obligor) and appear to relate on their face to such
Mortgage Loan, (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule corresponding to the loan
number for the Mortgage Loan, the Mortgagor's name, including the street address
but excluding the zip code, the Mortgage Interest Rate and the original
principal balance of the Mortgage Loan accurately reflects information set forth
in the Mortgage File and (iv) with respect to Mortgage Loans with a Mortgage
Interest Rate subject to adjustment, the Gross Margin, the lifetime cap and the
periodic cap for such Mortgage Loan. In performing any such review, the Trustee,
or the Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported genuineness
of any signature thereon. Notwithstanding anything to the contrary in this
Agreement, it is herein acknowledged that, in conducting such review, the
Trustee or the Custodian on its behalf is under no duty or obligation to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine whether they are genuine, enforceable, or appropriate
for the represented purpose or whether they have actually been recorded or that
they are other than what they purport to be on their face, or to determine
whether any Person executing any documents is authorized to do so or whether any
signature is genuine.
If the Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Sponsor. In accordance with the Mortgage Loan Purchase
Agreement, the Sponsor shall correct or cure any such defect within ninety (90)
days from the date of notice from the Trustee or the Custodian, as its agent, of
the defect and if the Sponsor fails to correct or cure the defect within such
period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee, shall enforce the
Sponsor's obligation pursuant to the Mortgage Loan Purchase Agreement, within 90
days from the Trustee's or the Custodian's notification, to purchase such
Mortgage Loan at the
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Purchase Price; provided that, if such defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered; provided, however, that if such defect relates solely to
the inability of the Sponsor to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy because the originals of
such documents, or a certified copy have not been returned by the applicable
jurisdiction, the Sponsor shall not be required to purchase such Mortgage Loan
if the Sponsor delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Sponsor
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Sponsor shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its
agent, shall be effected by the Sponsor within thirty days of its receipt of the
original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders
and any NIMs Insurer, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor and any NIMs
Insurer a Final Certification. In conducting such review, the Trustee or the
Custodian, as its agent, will certify as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto as
not being covered by such certification), that (i) all documents constituting
part of such Mortgage File (other than such documents described in Section
2.01(b)(I)(v) and (ix)) required to be delivered to it pursuant to this
Agreement are in its possession, provided that with respect to the documents
described in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and 2.01(b)(II)(viii)
and (ix) to the extent the Trustee or the Custodian on its behalf has actual
knowledge that such documents exist, (ii) such documents have been reviewed by
it and are not torn, mutilated, defaced or otherwise altered (except if
initialed by the obligor) and appear regular on their face and relate to such
Mortgage Loan, (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule corresponding to the loan
number for the Mortgage Loan, the Mortgagor's name, including the street address
but excluding the zip code, the Mortgage Interest Rate and the original
principal balance of the Mortgage Loan accurately reflects information set forth
in the Mortgage File. In performing any such review, the Trustee, or the
Custodian, as its agent, may conclusively rely on the purported due execution
and genuineness of any such document and on the purported genuineness of any
signature thereon. Notwithstanding anything to the contrary in this Agreement,
it is herein acknowledged that, in conducting such review, the Trustee or the
Custodian on its behalf is under no duty or obligation (i) to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine whether they are genuine, enforceable, or appropriate for the
represented purpose or whether they have actually been recorded or that they are
other than what they purport to be on their face, or to determine whether any
Person executing any documents is authorized to do so or whether any signature
is genuine. If the Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Sponsor and any NIMs Insurer. In accordance with the
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Mortgage Loan Purchase Agreement, the Sponsor shall correct or cure any such
defect within 90 days from the date of notice from the Trustee of the defect and
if the Sponsor is unable to cure such defect within such period, and if such
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the Sponsor's obligation
under the Mortgage Loan Purchase Agreement to purchase such Mortgage Loan at the
Purchase Price, provided, however, that if such defect relates solely to the
inability of the Sponsor to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy, because the originals of
such documents, or a certified copy, have not been returned by the applicable
jurisdiction, the Sponsor shall not be required to purchase such Mortgage Loan,
if the Sponsor delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Sponsor in
accordance with Subsections 2.02(a) or (b) above, the Sponsor shall remit to the
Master Servicer the Purchase Price for deposit in the Master Servicer Collection
Account and the Sponsor shall provide to the Trustee written notification
detailing the components of the Purchase Price. Upon deposit of the Purchase
Price in the Master Servicer Collection Account, the Depositor shall give
written notice thereof to the Trustee, the Custodian and the Trustee or the
Custodian, as its agent (upon receipt of a Request for Release in the form of
Exhibit D attached hereto with respect to such Mortgage Loan), shall release to
the Sponsor the related Mortgage File and the Trustee shall execute and deliver
all instruments of transfer or assignment, without recourse, furnished to it by
the Sponsor as are necessary to vest in the Sponsor title to and rights under
the Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Trustee. The
Depositor or Master Servicer shall amend the Mortgage Loan Schedule, to reflect
such repurchase and shall promptly notify the Rating Agencies, any NIMs Insurer
and the Master Servicer of such amendment. The obligation of the Sponsor to
repurchase any Mortgage Loan as to which such a defect in a constituent document
exists shall be the sole remedy respecting such defect available to the
Certificateholders, any NIMs Insurer or to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders and any NIMs Insurer, all of its right, title and interest in
the Mortgage Loan Purchase Agreement, including but not limited to Depositor's
rights pursuant to the Servicing Agreements (noting that the Sponsor has
retained the right in the event of breach of the representations, warranties and
covenants, if any, with respect to the related Mortgage Loans of the related
Servicer under the related Servicing Agreement to enforce the provisions thereof
and to seek all or any available remedies). The obligations of the Sponsor to
substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's
and the Certificateholders' sole remedy for any breach thereof. At the request
of the Trustee, the Depositor shall take such actions as may be necessary to
enforce the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement that are made to the best of the Sponsor's knowledge, if
it is discovered by any of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator or the Trustee that the substance of such
representation
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and warranty is inaccurate and such inaccuracy materially and adversely affects
the value of the related Mortgage Loan, then notwithstanding the Sponsor's lack
of knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation or
warranty.
(b) If the Depositor, the Master Servicer, Securities Administrator, any
NIMs Insurer or the Trustee discovers a breach of any of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of
Certificateholders, any NIMs Insurer or the Trustee in the related Mortgage
Loan, the party discovering the breach shall give prompt written notice of the
breach to the other parties. The Sponsor, within 90 days of its discovery or
receipt of notice that such breach has occurred (whichever occurs earlier),
shall cure the breach in all material respects or, subject to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, shall
purchase the Mortgage Loan or any property acquired with respect thereto from
the Trustee; provided, however, that if there is a breach of any representation
set forth in the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and the Mortgage Loan or the related property acquired
with respect thereto has been sold, then the Sponsor shall pay, in lieu of the
Purchase Price, any excess of the Purchase Price over the Net Liquidation
Proceeds received upon such sale. (If the Net Liquidation Proceeds exceed the
Purchase Price, any excess shall be paid to the Sponsor to the extent not
required by law to be paid to the borrower.) Any such purchase by the Sponsor
shall be made by providing an amount equal to the Purchase Price to the Master
Servicer for deposit in the Master Servicer Collection Account and written
notification detailing the components of such Purchase Price. The Depositor
shall notify the Trustee in writing of the deposit of the Purchase Price and
submit to the Trustee or the Custodian, as its agent, a Request for Release, and
the Trustee shall release, or the Trustee shall cause the Custodian to release,
to the Sponsor the related Mortgage File and the Trustee shall execute and
deliver all instruments of transfer or assignment furnished to it by the
Sponsor, without recourse, as are necessary to vest in the Sponsor title to and
rights under the Mortgage Loan or any property acquired with respect thereto.
Such purchase shall be deemed to have occurred on the date on which the Purchase
Price in available funds is received by the Master Servicer. The Depositor or
the Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Master Servicer and the Rating Agencies
of such amendment. Enforcement of the obligation of the Sponsor to purchase (or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any property
acquired with respect thereto (or pay the Purchase Price as set forth in the
above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders, any NIMs Insurer or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Sponsor may, no later than the date by which such purchase by the
Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage
Loan accompanied by a certificate of an authorized officer of the Sponsor that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement
or this Agreement, as applicable; provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall
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not be permitted after the termination of the two-year period beginning on the
Startup Day; provided, further, that if the breach would cause the Mortgage Loan
to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or substitution must occur within 90 days from the date the
breach was discovered. The Trustee or the Custodian, as its agent, shall examine
the Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the
Sponsor, in writing, within five Business Days after receipt, whether or not the
documents relating to the Substitute Mortgage Loan satisfy the requirements of
the fourth sentence of Subsection 2.02(a). Within two Business Days after such
notification, the Sponsor shall provide to the Securities Administrator for
deposit in the Distribution Account the amount, if any, by which the Outstanding
Principal Balance as of the next preceding Due Date of the Mortgage Loan for
which substitution is being made, after giving effect to Scheduled Principal due
on such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Sponsor of the Purchase Price for the purchase of a
Mortgage Loan by the Sponsor. After such notification to the Sponsor and, if any
such excess exists, upon written notification of the receipt of such deposit,
the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such month
shall be the property of the Issuing Entity and accrued interest for such month
on the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the Sponsor.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Sponsor and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Issuing Entity. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request
for Release for such Mortgage Loan), the Trustee shall release to the Sponsor
the related Mortgage File related to any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, and shall execute and deliver all instruments of transfer or
assignment, without recourse, in form as provided to it as are necessary to vest
in the Sponsor title to and rights under any Mortgage Loan released pursuant to
the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Sponsor shall deliver the documents related to the Substitute
Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase
Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable,
with the date of acceptance of the Substitute Mortgage Loan deemed to be the
Closing Date for purposes of the time periods set forth in those Subsections.
The representations and warranties set forth in the Mortgage Loan Purchase
Agreement shall be deemed to have been made by the Sponsor with respect to each
Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by
the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to
reflect such substitution and shall provide a copy of such amended Mortgage Loan
Schedule to the Trustee, any NIMs Insurer and the Rating Agencies.
Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Mortgage Loan shall be made
unless the Securities Administrator, any NIMs Insurer and the Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make
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the substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC provisions.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
assignment to it on behalf of the Issuing Entity of the Mortgage Loans and the
other assets comprising the Trust Fund and, concurrently therewith, the
Securities Administrator has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, any NIMs Insurer, the
Master Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently conducted
or on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the articles of incorporation or by-laws of
the Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
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(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Depositor
will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to
the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
Section 2.07 Representations and Warranties Concerning the Master Servicer
and Securities Administrator. ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as Master
Servicer and Securities Administrator hereby represents and warrants to the
Sponsor, the Depositor and the Trustee as follows, as of the Closing Date:
(i) It is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Master Servicer and the Securities
Administrator, to the extent necessary to ensure its ability to master
service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate action
on its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
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(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in its ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which it is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or regulation
applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its
ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, the Master Servicer shall provide such
information to the Securities Administrator as shall be necessary in order for
it to prepare the statements specified in Section 6.03, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its monitoring
with the
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actual remittances of the Servicers to the Master Servicer Collection Account
pursuant to the applicable Servicing Agreements.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
The Trustee shall furnish the Servicers and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
The Trustee shall execute and deliver to the related Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
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Section 3.02 REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee and Securities Administrator have
received a REMIC Opinion prepared at the expense of the Issuing Entity; and (b)
other than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 3.03 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
Securities Administrator and the Depositor the compliance by each Servicer with
its duties under the related Servicing Agreement. In the review of each
Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Servicing Agreement, or that a notice should be sent pursuant to such Servicing
Agreement with respect to the occurrence of an event that, unless cured, would
constitute grounds for such termination, the Master Servicer shall notify the
Depositor, Securities Administrator and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as servicer of the related Mortgage Loans or, if the
Master Servicer is unwilling or unable to act as a Servicer, any NIMs Insurer or
the Master Servicer shall cause the Trustee to enter in to a new Servicing
Agreement with a successor servicer selected by the Master Servicer that is
eligible in accordance with the criteria specified in this Agreement that is
reasonably acceptable to the NIMs Insurer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor servicer. In either event, such enforcement,
including, without limitation, the legal prosecution of claims, termination of
the Servicing Agreements and the pursuit of other appropriate remedies, shall be
in such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense subject to Section 3.03(c), provided that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of
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servicing by the Master Servicer with respect to any Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of a Servicer as a result of an event of default by such Servicer
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master Servicer
Collection Account pursuant to Section 4.03(b).
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of such Servicer, if any, that it
replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit any Servicer to) knowingly
or intentionally take any action, or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, would cause any REMIC created hereunder to fail to
qualify as a REMIC or result in the imposition of a tax upon the Issuing Entity
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code) unless the Master Servicer has received an
Opinion of Counsel (but not at the expense of the Master Servicer) to the effect
that the contemplated action will not would cause any REMIC created hereunder to
fail to qualify as a REMIC or result in the imposition of a tax upon any REMIC
created hereunder. The Trustee
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shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any limited powers of attorney (in form acceptable to the Trustee)
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or any Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or the
receipt by any Servicer of a notification that payment in full has been escrowed
in a manner customary for such purposes for payment to Certificateholders on the
next Distribution Date, the Servicers or the Master Servicer will, if required
under the applicable Servicing Agreement, promptly furnish to the Custodian, on
behalf of the Trustee, two copies of a certification substantially in the form
of Exhibit D hereto signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to its Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Custodian, on behalf of the Trustee, shall promptly, but in no less
than three (3) Business Days (or, to the extent that the applicable Servicer
notifies the Sponsor that a document is not in the Servicer's possession as part
of the Servicing File which is needed for purposes of the Servicer complying
with any applicable law, within such shorter period as may be necessary to
enable the Servicer to comply with such law), release the related Mortgage File
to the applicable Servicer and the Trustee and
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Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, each Servicer is authorized, to give, as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan and in accordance with the applicable Servicing Agreement,
the Trustee shall execute such documents as requested and as shall be prepared
and furnished to the Trustee by a Servicer or the Master Servicer and as are
necessary to the prosecution of any such proceedings. In connection with the
foregoing, the Custodian, on behalf of the Trustee, shall, upon the request of a
Servicer or the Master Servicer, and delivery to the Custodian, on behalf of the
Trustee, of two copies of a Request for Release signed by a Servicing Officer
substantially in the form of Exhibit D (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer), release the related Mortgage File held in its possession or
control to the related Servicer or the Master Servicer, as applicable. Such
trust receipt shall obligate the related Servicer or the Master Servicer to
return the Mortgage File to the Custodian on behalf of the Trustee, when the
need therefor by the Servicer or the Master Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the Mortgage File
shall be released by the Custodian, on behalf of the Trustee, to the related
Servicer or the Master Servicer.
(c) The Servicers shall have no liability for, and shall be excused from,
any non-performance hereunder to the extent such non-performance is solely and
directly caused by (i) the failure of the Custodian to release (and not caused
by any failure or non-performance by the Servicers), in a manner consistent with
the terms of the Custodial Agreement, any Mortgage File requested by the
Servicers pursuant to a Request for Release and (ii) the unreasonable refusal of
the Trustee to execute a request for the execution of documents.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof, or in the case of the Servicers, the applicable Servicing Agreement, to
be delivered to the Trustee or Custodian. Any funds received by the Master
Servicer or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan shall be held for the benefit
of the Trustee and the Certificateholders subject to the Master Servicer's right
to retain or withdraw from the Master Servicer Collection Account the Master
Servicing Compensation and other amounts provided in this Agreement, and to the
right of each Servicer to retain its Servicing Fee and other amounts as provided
in the applicable Servicing Agreement. The Master Servicer shall, and (to the
extent provided in the applicable
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Servicing Agreement) shall cause each Servicer to, provide access to information
and documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices of
the Master Servicer designated by it. In fulfilling such a request, the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master Servicer
and each Servicer shall be entitled to setoff against, and deduct from, any such
funds any amounts that are properly due and payable to the Master Servicer or
such Servicer under this Agreement or the applicable Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Sections 4.01 and 4.02, any amounts collected by the
Servicers or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Sections 4.02 and 4.03 in
accordance with the terms and conditions of the related Servicing Agreement. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 4.02 and 4.03.
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Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of such Master
Servicer or Servicer, would have been covered thereunder. The Master Servicer
shall use its best reasonable efforts to cause each Servicer (to the extent
required under the related Servicing Agreement) to keep in force and effect (to
the extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trustee and the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01
and 4.02, any amounts collected by the Master Servicer or any Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents. The Trustee or the Custodian shall retain possession and custody of
the originals (to the extent available) of any Primary Mortgage Insurance
Policies, or certificate of insurance if applicable, and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise has
fulfilled its obligations under this Agreement, the Trustee or its Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee or the
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Custodian upon the execution or receipt thereof the originals of any Primary
Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute portions of the Mortgage File that come
into the possession of the Master Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the terms and
conditions of the applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer. The Master Servicer will
be entitled to all income and gain realized from any investment of funds in the
Master Servicer Collection Account, pursuant to Article IV, for the performance
of its activities hereunder. Servicing compensation in the form of assumption
fees, if any, late payment charges, as collected, if any, or otherwise (but not
including any Prepayment Charge) shall be retained by the applicable Servicer
and shall not be deposited in the Protected Account. The Master Servicer shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
Section 3.15 REO Property.
(a) In the event the Issuing Entity acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
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(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Master Servicer Collection Account on the next succeeding Servicer Remittance
Date.
Section 3.16 Annual Statement as to Compliance.
Not later than March 1 of each calendar year (other than the calendar year
during which the Closing Date occurs), each Servicer shall deliver (or otherwise
make available) and each Servicer shall cause any Servicing Function Participant
engaged by it to deliver to the Master Servicer, the Securities Administrator
and the Depositor, an Officer's Certificate in the form attached hereto as
Exhibit P stating, as to each signatory thereof, that (i) a review of the
activities of such signatory during the preceding calendar year, or portion
thereof, and of the performance of such signatory under the related Servicing
Agreement or such other applicable agreement in the case of a Servicing Function
Participant has been made under such officer's supervision, and (ii) to the best
of such officer's knowledge, based on such review, such signatory has fulfilled
all its obligations under this Agreement, the related Servicing Agreement or
such other applicable agreement in all material respects throughout such year or
a portion thereof, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof.
The Master Servicer and the Securities Administrator shall deliver (or
otherwise make available) (and the Master Servicer and Securities Administrator
shall cause any Servicing Function Participant engaged by it to deliver) to the
Depositor, any NIMs Insurer and the Securities Administrator on or before March
1 (with a ten-calendar day cure period) of each year, commencing in March 2008,
an Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section. For the
avoidance of doubt, the Master Servicer and the Securities Administrator may
satisfy the requirements of this Section 3.16 by each delivering a single annual
statement of compliance containing all of the information required pursuant to
this Section 3.16.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or
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resigns pursuant to the terms of this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, as the case may be,
such party shall provide, an annual statement of compliance pursuant to this
Section 3.16 or to such applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
Section 3.17 Reports on Assessment of Compliance and Attestation.
(a) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each Servicer at its own expense,
shall furnish, and shall cause any Servicing Function Participant engaged by it
to furnish (unless in the case of a Subcontractor, such Servicer has notified
the Depositor and the Master Servicer in writing that such compliance statement
is not required for the Subcontractor) to the Master Servicer, the NIMs Insurer,
the Securities Administrator and the Depositor an officer's assessment of its
compliance with the Relevant Servicing Criteria during the preceding calendar
year as required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB (the "Assessment of Compliance"), which assessment shall contain
(A) a statement by such party of its responsibility for assessing compliance
with the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party's assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to be
filed pursuant to Section 3.18, including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion of
each such failure and the nature and status thereof, which assessment shall be
based on the activities it performs with respect to asset-backed securities
transactions taken as a whole involving such party that are backed by the same
asset type as the Mortgage Loans, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian each at its own expense, shall furnish or otherwise make available,
and each such party shall cause any Servicing Function Participant engaged by it
to furnish, each at its own expense, to the Securities Administrator, the NIMs
Insurer, and the Depositor, a report on an assessment of compliance with the
Relevant Servicing Criteria that contains (A) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Relevant Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party's assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the Form 10-K required to be filed pursuant to Sections 3.18(h), (i),
(j) and (k), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Issuing Entity for which
a 10-K is required to be filed, the Master Servicer and the Custodian shall each
forward to the Securities Administrator and the Depositor the name of each
Servicing Function Participant engaged by it
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and what Relevant Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Function Participant
(provided, however, that the Master Servicer need not provide such information
to the Securities Administrator so long as the Master Servicer and the
Securities Administrator are the same Person). When the Master Servicer, and the
Securities Administrator (or any Servicing Function Participant engaged by them)
submit their assessments to the Securities Administrator, such parties will also
at such time include the assessment and attestation pursuant to this Section
3.17 of each Servicing Function Participant engaged by it.
Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with such
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by such Servicer
by each such party, and (ii) the Securities Administrator shall confirm that the
assessments individually address the Relevant Servicing Criteria for each party
as set forth on Exhibit K or any similar exhibit set forth in each Servicing
Agreement in respect of each Servicer and notify the Depositor of any
exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section. For the avoidance of doubt, the Master Servicer and the Securities
Administrator may satisfy the requirements of this Section 3.17 relating to
reports on assessment of compliance by each delivering a single annual report on
assessment of compliance containing all of the information required pursuant to
this Section 3.17.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or resigns pursuant to the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide, an assessment of compliance pursuant to this Section 3.17,
coupled with an attestation as required in this Section 3.17, or such applicable
agreement notwithstanding any such termination, assignment or resignation.
(b) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each Servicer at its own expense,
shall cause, and shall cause any Servicing Function Participant engaged by it to
cause (unless in the case of a Subcontractor, such Servicer has notified the
Depositor and the Master Servicer in writing that such report is not required
for the Subcontractor) a nationally or regionally recognized firm of independent
registered public accountants (who may also render other services to such
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a report (the
"Accountant's Attestation") to the Master Servicer, the Securities Administrator
and the Depositor to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes an
assertion that such party has complied with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the Public Company
Accounting Oversight Board, it is expressing an opinion as to whether such
party's compliance with the Relevant Servicing Criteria was fairly
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stated in all material respects, or it cannot express an overall opinion
regarding such party's assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use and
not contain restricted use language. Such Accountant's Attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and each such party shall cause
any Servicing Function Participant engaged by it to cause, each at its own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, the Securities Administrator, or
such other Servicing Function Participants, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish an
attestation report to the Securities Administrator and the Depositor, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight Board,
it is expressing an opinion as to whether such party's compliance with the
Relevant Servicing Criteria was fairly stated in all material respects, or it
cannot express an overall opinion regarding such party's assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section 3.17(a) is coupled with an attestation meeting the
requirements of Section 3.17(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section. For the avoidance of doubt, the Master
Servicer and the Securities Administrator may satisfy the requirements of this
Section 3.17 relating to attestations by each delivering a single attestation
containing all of the information required pursuant to this Section 3.17.
In the event the Master Servicer, the Securities Administrator, the
Custodian, any Servicer or any Servicing Function Participant engaged by any
such party, is terminated, assigns its rights and duties under, or resigns
pursuant to the terms of, this Agreement, or any applicable Custodial Agreement,
Servicing Agreement or sub-servicing agreement, as the case may be, such party
shall cause a registered public accounting firm to provide an attestation
pursuant to this Section 3.17, or such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
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Section 3.18 Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Issuing Entity a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
by the parties set forth on Exhibit Q-3 to the Depositor and the Securities
Administrator and directed and approved by the Depositor, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K except
as set forth in the next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable Event
(A) each party listed on Exhibit Q-3 hereto shall use commercially reasonable
best efforts to provide immediate notice to the Master Servicer, the Securities
Administrator and the Depositor, by fax and by phone or by e-mail and by phone,
(B) each such party shall be required to provide to the Securities Administrator
and the Depositor, to the extent known, in ▇▇▇▇▇-compatible format or in such
other format as agreed upon by the Securities Administrator and such party, the
form and substance of any Form 8-K Disclosure Information if applicable,
together with the form set forth on Exhibit O (the "Additional Disclosure
Notification") by the close of business New York City time on the 2nd Business
Day following the occurrence of such Reportable Event and (C) the Depositor,
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-3 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
(c) After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form 8-K,
the Securities Administrator shall be entitled to assume that such Form 8-K is
in final form and the Securities Administrator may proceed with the process for
execution and filing of the Form 8-K. A duly authorized representative of the
Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on time
or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.18(n).
(d) Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the
Securities Administrator. The parties to this Agreement
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acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 8-K is contingent upon the other
parties hereto strictly observing all applicable deadlines in the performance of
their duties under this Section 3.18. The Depositor acknowledges that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 3.18 related to the timely preparation, execution and
filing of Form 8-K is also contingent upon the Servicers, the Custodian and any
Servicing Function Participant strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Securities Administrator of any necessary Form 8-K
Disclosure Information pursuant to the related Servicing Agreements, the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 8-K, where such failure
results from the Securities Administrator's inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto or any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 8-K.
(e) Within fifteen (15) days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator
shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (▇▇▇▇▇), a Form 10-D with a copy of the Monthly
Statement for such Distribution Date as an exhibit thereto. Any disclosure in
addition to the Monthly Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be reported by the parties set forth
on Exhibit Q-1 to the Depositor and the Securities Administrator and directed
and approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure except as
set forth in the next paragraph.
(f) As set forth in Exhibit Q-1 hereto, for so long as the Issuing Entity
is subject to the reporting requirements of the Exchange Act, within five (5)
calendar days after the related Distribution Date (i) each party listed on
Exhibit Q-1 hereto shall be required to provide to the Depositor and the
Securities Administrator, to the extent known, in ▇▇▇▇▇-compatible format or in
such other format as agreed upon by the Securities Administrator and such party,
the form and substance of any Additional Form 10-D Disclosure if applicable
together with an Additional Disclosure Notification, and (ii) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-1 of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(g) After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such
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copy, but no later than the 12th calendar day after the Distribution Date, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-D, the Securities Administrator shall be
entitled to assume that such Form 10-D is in final form and the Securities
Administrator may proceed with the process for execution and filing of the Form
10-D. A duly authorized representative of the Master Servicer shall sign each
Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 3.18(n). Promptly (but not later than one
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Securities Administrator. Form 10-D requires the
registrant to indicate (by checking "yes" or "no") that it "(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Securities
Administrator in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D, if the
answer to the questions should be "no." The Securities Administrator shall be
entitled to rely on such representations in preparing, executing and/or filing
any such Form 10-D. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
respective duties under this Section 3.18 related to the timely preparation,
execution and filing of Form 10-D is contingent upon the other parties hereto
strictly observing all applicable deadlines in the performance of their duties
under this Section 3.18. The Depositor acknowledges that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-D is also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form 10-D
Disclosure pursuant to the related Servicing Agreements, the Custodial Agreement
or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator will have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-D resulting from the Securities
Administrator's inability or failure to obtain or receive any information needed
to prepare, arrange for execution or file such Form 10-D on a timely basis.
(h) On or prior to the 90th calendar day after the end of the fiscal year
for the Issuing Entity or such earlier date as may be required by the Exchange
Act (the "10-K Filing Deadline") (it being understood that the fiscal year for
the Issuing Entity ends on December 31st of each year) commencing in March 2008,
the Securities Administrator shall, on behalf of the Issuing Entity and in
accordance with industry standards, prepare and file with the Commission via
▇▇▇▇▇ a Form 10-K with respect to the Issuing Entity. Such Form 10-K shall
include the following items, in each case, as applicable, to the extent they
have been delivered to the Securities Administrator within the applicable time
frames set forth in this Agreement, the related Servicing Agreements and
Custodial Agreement: (i) an annual compliance statement for
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the Master Servicer, each Servicer, the Securities Administrator and any
Servicing Function Participant engaged by any such party (together with the
Custodian, each a "Reporting Servicer"), as described in Section 3.16 of this
Agreement, the related Servicing Agreement and the Custodial Agreement;
provided, however, that the Securities Administrator, at its discretion, may
omit from the Form 10-K any annual compliance statement that is not required to
be filed with such Form 10-K pursuant to Regulation AB; (ii)(A) the annual
reports on assessment of compliance with Servicing Criteria for each Reporting
Servicer (unless the Depositor has determined that such compliance statement is
not required by Regulation AB), as described in Section 3.17 of this Agreement,
the related Servicing Agreement and the Custodial Agreement, and (B) if any
Reporting Servicer's report on assessment of compliance with Servicing Criteria
described in Section 3.17 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
in Section 3.17 of this Agreement is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included; provided, however, that the Securities Administrator, at
its discretion, may omit from the Form 10-K any assessment of compliance or
attestation report described in clause (iii) below that is not required to be
filed with such Form 10-K pursuant to Regulation AB; (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described in Section 3.17 of this Agreement, the related Servicing Agreement and
the Custodial Agreement, and (B) if any registered public accounting firm
attestation report described under Section 3.17 of this Agreement identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included, and
(iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the form attached hereto as Exhibit L,
executed by the senior officer in charge of securitizations of the Master
Servicer. Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall be reported by the parties as set forth in Exhibit Q-2 to the Depositor
and the Securities Administrator and directed and approved by the Depositor
pursuant to the following paragraph and the Securities Administrator will have
no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure except or set forth in the next paragraph.
(i) As set forth in Exhibit Q-2 hereto, no later than March 1 (with a ten
calendar day cure period) of each year that the Issuing Entity is subject to the
Exchange Act reporting requirements, commencing in March 2008, (i) the parties
listed on Exhibit Q-2 hereto shall be required to provide to the Depositor and
the Securities Administrator, to the extent known, in ▇▇▇▇▇-compatible format or
in such other format as agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable together with an Additional Disclosure Notification, and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-K Disclosure and shall forward such
Additional Form 10-K Disclosure. The Securities Administrator has no duty under
this Agreement to monitor or enforce the performance by the parties listed on
Exhibit Q-2 of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure Information. The
Depositor will be responsible for any reasonable fees and expenses incurred by
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the Securities Administrator in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this paragraph.
(j) After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the process for execution and filing of the Form
10-K. A senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if
a previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 3.18(n). Promptly (but no later
than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 10-K prepared and filed by the Securities Administrator. Form 10-K
requires the registrant to indicate (by checking "yes" or "no") that it "(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Trust is subject to the reporting requirements of
the Exchange Act, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such Form 10-D. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18, Section
3.16 and Section 3.17. The Depositor acknowledges that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-K is also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form 10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to the related Servicing Agreement, the Custodial
Agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K resulting from the Securities
Administrator's inability or failure to obtain or receive any information from
any other party hereto or any Servicer, Custodian or Servicing Function
Participant needed to prepare, execute or file such Form 10-K.
(k) Each Form 10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, which
shall be in the form attached hereto as Exhibit L. Each Servicer shall sign and
provide, and each of the
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Servicers, the Master Servicer and the Securities Administrator shall cause any
Servicing Function Participant engaged by it to sign and provide, to the person
who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the "Certifying Person") by March 1
(with a ten day cure period) of each year in which the Issuing Entity is subject
to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (a "Back-Up
Certification") (in the form attached hereto as Exhibit M) upon which the
Certifying Person, the entity for which the Certifying Person acts as an officer
and such entity's officers, directors and affiliates (collectively, with the
Certifying Person, the "Certification Parties") can reasonably rely. The senior
officer of the Master Servicer in charge of the master servicing function shall
serve as the Certifying Person on behalf of the Issuing Entity. Such officer of
the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or Servicing Function Participant engaged by any such party
is terminated or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide a Back-Up
Certification to the Master Servicer pursuant to this Section 3.18 with respect
to the period of time it was subject to this Agreement or any other applicable
agreement, as the case may be. Notwithstanding the foregoing, (i) the Master
Servicer and the Securities Administrator shall not be required to deliver a
Back-Up Certification to each other if both are the same Person and the Master
Servicer is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the event that it does not
receive any Back-Up Certification required to be furnished to it pursuant to
this section or any Servicing Agreement or Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file any
items with the Commission other than those specified in this section and the
Master Servicer shall execute any and all Form 10-Ds, 8-Ks and 10-Ks required
hereunder.
(m) On or prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare and file a Form 15 Suspension Notification relating
to the automatic suspension of reporting in respect of the Issuing Entity under
the Exchange Act.
(n) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor of such
inability to make a timely filing with the Commission. In the case of Form 10-D
and 10-K, the parties to this Agreement will cooperate to prepare and file a
Form 12b-25 and a 10-D/A and 10K/A, as applicable, pursuant to Rule 12b-25 of
the Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next succeeding Form 10-D to be filed for the Issuing Entity. In the event
that any previously filed Form 8-K, 10-D or 10-K needs to be amended, in
connection with any Additional Form 10-D Disclosure (other than, in the case of
Form 10-D, for the purpose of restating any Monthly Statement), Additional Form
10-K Disclosure or Form 8-K Disclosure Information, the Securities Administrator
will electronically notify the Depositor and such other parties to the
transaction as are affected by such amendment, and such parties will cooperate
to prepare any
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necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K shall be signed by duly authorized representative or a
senior officer in charge of master servicing, as applicable, of the Master
Servicer. The parties to this Agreement acknowledge that the performance by the
Master Servicer of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K is contingent upon each such party performing its duties
under this Section. Neither the Master Servicer nor the Securities Administrator
shall have any liability for any loss, expense, damage or claim arising out of
or with respect to any failure to properly prepare, execute and/or timely file
any such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K,
where such failure results from the Securities Administrator's inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Servicer, any Custodian or any Servicing Function Participant
needed to prepare, arrange for execution or file such Form 15, Form 12b-25 or
any amendments to Forms 8-K, 10-D or 10-K.
(o) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
3.18.
(p) Each of the parties agrees to provide to the Securities Administrator
such additional information related to such party as the Securities
Administrator may reasonably request, including evidence of the authorization of
the person signing any certificate or statement, financial information and
reports, and such other information related to such party or its performance
hereunder.
(q) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 3.18,
may be delivered via facsimile to (▇▇▇) ▇▇▇-▇▇▇▇, via email to ▇▇▇▇_▇▇▇▇@▇▇.▇▇▇
or telephonically by calling ▇▇▇▇ Park at (▇▇▇) ▇▇▇-▇▇▇▇.
(r) For the avoidance of doubt, any filings or deliverables required under
this Section 3.18, may be prepared, delivered and filed in a consolidated
manner. The Master Servicer, the Securities Administrator and the Depositor may
satisfy the requirements of this Section 3.18 with a single set of filings and
deliverables addressing the requirements of this Section 3.18.
Section 3.19 Compliance with Regulation AB. Each of the parties hereto
acknowledges and agrees that the purpose of Sections 3.16, 3.17 and 3.18 is to
facilitate compliance by the Depositor with the provisions of Regulation AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that the parties' obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the requirements of Regulation AB and the parties shall comply with requests
made by the Depositor for delivery of additional or different information as the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB. Any such supplementation or modification shall be made in
accordance with Section 11.02 without the consent of the Certificateholders, and
may result in a change in the reports filed by the Securities Administrator on
behalf of the Issuing Entity under the Exchange Act.
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Section 3.20 Servicing Rights Owner. At the Servicing Rights Owner's
request, Wilshire and/or PHH shall resign as Servicer of the Wilshire Loans
and/or PHH Loans upon the selection and appointment of a successor servicer by
the Servicing Rights Owner; provided that the Servicing Rights Owner delivers to
the Master Servicer, the Trustee and the Securities Administrator a letter
indicating that such successor servicer designated by the Servicing Rights Owner
meets the eligibility requirements for a successor servicer, including that such
successor servicer is a Qualified Servicer or is a servicer acceptable to the
Rating Agencies. No appointment of a successor servicer hereunder shall be
effective until the Master Servicer shall have consented thereto. Upon such
appointment, at the date specified in such letter such successor servicer will
become a servicer pursuant to the terms of this Agreement. Any successor
servicer shall be an institution that is a ▇▇▇▇▇▇▇ Mac approved seller/servicer
in good standing, shall be willing to service the Mortgage Loans and shall
accept such delegation and assignment, and shall service the Mortgage Loans
pursuant to a servicing agreement entered into among the successor servicer, the
Depositor and the Master Servicer, provided that such servicing agreement shall
prohibit the successor servicer from causing any Adverse REMIC Event.
Section 3.21 Rights of the NIMs Insurer.
Each of the rights of the NIMs Insurer set forth in this Agreement shall
exist so long as the NIM Notes issued pursuant to the Indenture remain
outstanding or the NIMs Insurer is owed amounts in respect of its guarantee of
payment on such NIM Notes; provided, however, the NIMS Insurer shall not have
any rights hereunder (except pursuant to Section 10.14 in the case of clause
(ii) below) during the period of time, if any, that (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes
ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited within two
Business Days (or as of such other time specified in the related Servicing
Agreement) of receipt all collections of principal and interest on any Mortgage
Loan and with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent
Recoveries and advances made from the Servicer's own funds (less servicing
compensation as permitted by the applicable Servicing Agreement in the case of
the Servicer) and all other amounts to be deposited in the Protected Account.
The Servicer is hereby authorized to make withdrawals from and deposits to the
related Protected Account for purposes required or permitted by this Agreement.
To the extent provided in the related Servicing Agreement, the Protected Account
shall be held in a Designated Depository Institution and segregated on the books
of such institution in the name of the Trustee for the benefit of
Certificateholders.
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(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in the
name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds, such
Permitted Investments to mature, or to be subject to redemption or withdrawal,
no later than the date on which such funds are required to be withdrawn for
deposit in the Master Servicer Collection Account, and shall be held until
required for such deposit. The income earned from Permitted Investments made
pursuant to this Section 4.01 and any other benefit arising from holding a
Protected Account shall be paid to the related Servicer under the applicable
Servicing Agreement, and the risk of loss of moneys required to be distributed
to the Certificateholders resulting from such investments shall be borne by and
be the risk of the related Servicer, as set forth in the applicable Servicing
Agreement. The related Servicer (to the extent provided in the related Servicing
Agreement) shall deposit the amount of any such loss in the Protected Account
within two Business Days of receipt of notification of such loss but not later
than the second Business Day prior to the Distribution Date on which the moneys
so invested are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject
to this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from the Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections and
payments (other than with respect to principal of or interest on the Mortgage
Loans due on or before the Cut-off Date) with respect to each Loan Group:
(i) Monthly Payments on the Mortgage Loans received or any related
portion thereof advanced by such Servicer pursuant to the related Servicing
Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments in Full and any Liquidation Proceeds
received by such Servicer with respect to such Mortgage Loans in the
related Prepayment Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the Servicing Fees;
(iii) Curtailments received by such Servicer for such Mortgage Loans
in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account only to
make remittances as provided in Section 4.01(c), 4.02 and 4.03; to reimburse the
Master Servicer or a Servicer for Monthly Advances which have been recovered by
subsequent collection from the related Mortgagor; to remove amounts deposited in
error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 10.01. As provided in Sections 4.01(c) and
4.02(b) certain amounts otherwise due to the Servicers may be retained by them
as set forth in the related Servicing Agreements and need not be deposited in
the Master Servicer Collection Account.
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Section 4.02 Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer Collection Account may be a sub-account of the Distribution Account.
The Master Servicer will deposit in the Master Servicer Collection Account as
identified by the Master Servicer and as received by the Master Servicer, the
following amounts:
(i) Any amounts withdrawn from a Protected Account or other permitted
account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Protected Account or other permitted account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
related Servicer to the Distribution Account or the Master Servicer Collection
Account, as applicable. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature
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or be subject to redemption or withdrawal on or before, and shall be held until,
the next succeeding Distribution Account Deposit Date. Any and all investment
earnings on amounts on deposit in the Master Servicer Collection Account from
time to time shall be for the account of the Master Servicer. The Master
Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Collection Account. The risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the Master Servicer. The Master Servicer shall deposit the amount of any
such loss in the Master Servicer Collection Account within two Business Days of
receipt of notification of such loss but not later than the second Business Day
prior to the Distribution Date on which the moneys so invested are required to
be distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) The Master Servicer will, from time to time on demand of the Master
Servicer, the Trustee or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to the
Servicing Agreements. The Master Servicer may clear and terminate the Master
Servicer Collection Account pursuant to Section 10.01 and remove amounts from
time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Securities Administrator for deposit therein) any Monthly Advances required to
be made by the Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer Collection Account with respect to the related
Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
Section 4.04 Distribution Account.
(a) The Securities Administrator shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit of
the Certificateholders in accordance with the terms and provisions of this
Agreement.
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(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected to the maximum extent permitted by applicable law from,
all claims, liens, and encumbrances of any creditors or depositors of the
Securities Administrator, the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Securities
Administrator, the Trustee or the Master Servicer). The Distribution Account
shall be an Eligible Account. The amount at any time credited to the
Distribution Account shall be (i) fully insured by the FDIC to the maximum
coverage provided thereby or (ii) invested in the name of the Trustee, in such
Permitted Investments selected by the Master Servicer or deposited in demand
deposits with such depository institutions as selected by the Master Servicer,
provided that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Master
Servicer or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to time
shall be for the account of the Securities Administrator. The Securities
Administrator shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution Date.
If there is any loss on a Permitted Investment or demand deposit, the Securities
Administrator shall deposit such amount in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the
Securities Administrator shall take such action as may be necessary to ensure
that the Certificateholders shall be entitled to the priorities afforded to such
a trust account (in addition to a claim against the estate of the Trust) as
provided by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute applicable to
state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The Securities Administrator will, from time to time on demand of the
Master Servicer, make or cause to be made such withdrawals or transfers from the
Distribution Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to the Servicing Agreements for the following purposes
(limited in the case of amounts due the Master Servicer to those not withdrawn
from the Master Servicer Collection Account in accordance with the terms of this
Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Monthly
Advance of its own funds or any advance of such Servicer's own funds, the
right of the Master Servicer or a Servicer to reimbursement pursuant to
this subclause (i) being limited to amounts received on a particular
Mortgage Loan (including, for this purpose, the Purchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by
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the Master Servicer or such Servicer in good faith as a Servicing Advance
in connection with the restoration of the related Mortgaged Property which
was damaged by an Uninsured Cause or in connection with the liquidation of
such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for Liquidation Expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for Liquidation Expenses with respect to a Mortgage Loan to
the extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (xi) of this
Subsection 4.05(a) to the Master Servicer; and (ii) such Liquidation
Expenses were not included in the computation of such Excess Liquidation
Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (ix) of this Subsection
4.05(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (ix) of this Subsection 4.05(a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds pursuant to Sections, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance
Proceeds and Liquidation Proceeds) which represent late recoveries of the
payments for which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect
to the related Mortgage Loan if the Monthly Advance or advance has not been
reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by
the related Servicer;
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(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) to reimburse the Trustee or the Securities Administrator for
expenses, costs and liabilities incurred by or reimbursable to it pursuant
to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Funds for each Loan Group to the Holders of the
Certificates in accordance with Section 6.01.
ARTICLE V
CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be executed by manual
or facsimile signature on behalf of the Securities Administrator by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Securities Administrator shall bind the Issuing Entity,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth as attached hereto executed
by the Securities Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Securities Administrator shall authenticate the
Certificates to be issued at the written direction of the Depositor, or any
Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator shall maintain, or cause to be maintained
in accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and
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deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with such Securities Administrator's customary procedures.
(b) No Transfer of a Class C or Class P Certificate shall be made unless
such Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall (except with
respect to the initial transfer of a Class C or Class P Certificate by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.) each certify to each Securities Administrator in writing the facts
surrounding the Transfer in substantially the form set forth in Exhibit F-1 (the
"Transferor Representation Letter") and (i) deliver a letter in substantially
the form of either Exhibit F-2 (the "Investor Representation Letter") or Exhibit
F-3 (the "Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator an Opinion of Counsel that such Transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. The Depositor shall
provide to any Holder of a Class C or Class P Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for Transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Securities Administrator shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information in the possession of the Securities
Administrator regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class C or Class P
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Depositor and the Securities Administrator against any liability
that may result if the Transfer is not so exempt or is not made in accordance
with such federal and state laws.
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No transfer of a Certificate that is neither an ERISA Restricted
Certificate nor a Class R Certificate shall be registered unless the transferee
provides the Securities Administrator with a representation that either (i) such
transferee is not, and is not acting for, on behalf of or with any assets of, an
employee benefit plan or other arrangement subject to Title I of ERISA or plan
subject to Section 4975 of the Code, or (ii) until the termination of the Swap
Agreement and the Cap Agreement, the acquisition and holding of the Certificate
will not constitute or result in a nonexempt prohibited transaction under Title
I of ERISA or Section 4975 of the Code.
No transfer of an ERISA Restricted Certificate or a Class R Certificate
will be registered unless the Securities Administrator has received (A) a
representation to the effect that such transferee is not an employee benefit
plan subject to Title I of ERISA, a plan subject to Section 4975 of the Code or
a plan subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and is not directly or indirectly acquiring such
Certificate for, on behalf of, or with any assets of any such Plan, or (B)
solely in the case of an ERISA Restricted Certificate (I) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation to the
effect that such transferee is an insurance company that is acquiring the
Certificate with assets contained in an "insurance company general account," as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the acquisition and holding of the Certificate are covered and exempt
under Sections I and III of PTCE 95-60, or (II) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator, and upon which the Securities Administrator shall be entitled to
rely, to the effect that the acquisition and holding of such Certificate will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Securities Administrator, the Master Servicer, the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the two immediately preceding paragraphs of this Subsection 5.02(b),
other than clause (B)(II) in the immediately preceding paragraph, shall be
deemed to have been made to the Securities Administrator by the transferee's
acceptance of a Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any Class of Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of a Certificate to or on behalf of a Plan without the delivery to the
Securities Administrator of a representation or an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect. The Securities Administrator shall not be under any liability
to any Person for any registration or transfer of any Certificate that is in
fact not permitted by this Section 5.02(b), nor shall the Trustee or the
Securities Administrator be under any liability for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements. The Trustee or the Securities Administrator shall be entitled, but
not obligated, to recover from any Holder of any Certificate that was in fact a
Plan and that held such Certificate in violation of this Section 5.02(b) all
payments made on such Certificate at and after the time it
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commenced such holding. Any such payments so recovered shall be paid and
delivered to the last preceding Holder of such Certificate that is not a Plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions, and the rights
of each Person acquiring any Ownership Interest in a Class R Certificate are
expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Securities Administrator of any change or impending change in its status as
a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be purchased,
transferred or sold, directly or indirectly, except in accordance with the
provisions hereof. No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Class R
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above, the
Securities Administrator shall have been furnished with an affidavit (a
"Transferee's Letter") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit E-1 and an affidavit (a "Transferor
Certificate") of the proposed transferor in the form attached hereto as
Exhibit E-2. In the absence of a contrary instruction from the transferor
of a Class R Certificate, declaration (11) in Appendix A of the
Transferee's Letter may be left blank. If the transferor requests by
written notice to the Securities Administrator prior to the date of the
proposed transfer that one of the two other forms of declaration (11) in
Appendix A of the Transferee's Letter be used, then the requirements of
this Section 5.02(c)(ii) shall not have been satisfied unless the
Transferee's Letter includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transferee's Letter from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transferee's Letter from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class R Certificate may be made to a person who is
not a U.S. Person (within the meaning of Section 7701 of the Code) unless
such person furnishes the transferor and the Securities Administrator with
a duly completed and effective Internal Revenue Service Form W-8ECI (or any
successor thereto) and the Securities Administrator consents to such
transfer, sale or other disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this
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Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Class R Certificate. The Securities
Administrator shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related
Transferee's Letter. The Securities Administrator shall be entitled but not
obligated to recover from any Holder of a Class R Certificate that was in
fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class R Certificate at and after either such time.
Any such payments so recovered by the Securities Administrator shall be
paid and delivered by the Securities Administrator to the last preceding
Permitted Transferee of such Certificate.
(v) At the option of the Holder of the Class R Certificate, the Class
SWR Interest, the Class LTR Interest and the Residual Interest may be
severed and represented by separate certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate); provided, however, that such separate certification may
not occur until the Securities Administrator receives a REMIC Opinion to
the effect that separate certification in the form and manner proposed
would not result in the imposition of federal tax upon the Issuing Entity
or any of the REMICs provided for herein or cause any of the REMICs
provided for herein to fail to qualify as a REMIC; and provided further,
that the provisions of Sections 5.02(b) and (c) will apply to each such
separate certificate as if the separate certificate were a Class R
Certificate. If, as evidenced by a REMIC Opinion, it is necessary to
preserve the REMIC status of any of the REMICs provided for herein, the
Class SWR Interest, the Class LTR Interest and the Residual Interest shall
be severed and represented by separate Certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate).
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Securities Administrator of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Securities Administrator or
the Depositor, to the effect that the elimination of such restrictions will not
cause any of the REMICs provided for herein to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Issuing Entity, any REMIC provided for herein, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
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for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The transferor of the Class R Certificate shall notify the Securities
Administrator in writing upon the transfer of the Class R Certificate.
(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Securities Administrator.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Securities Administrator or the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof and
(b) there is delivered to the Securities Administrator and the NIMs Insurer such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Securities Administrator that such
Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership in the
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time. All Certificates surrendered
to the Securities Administrator under the terms of this Section 5.03 shall be
canceled and destroyed by the Securities Administrator in accordance with its
standard procedures without liability on its part.
Section 5.04 Persons Deemed Owners. The NIMs Insurer, Securities
Administrator and any agent of the Securities Administrator may treat the Person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Securities Administrator, NIMs
Insurer, nor any agent of the Securities Administrator or NIMs Insurer shall be
affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses. If
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the NIMs
Insurer or the Depositor shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
Business Days after the receipt of such request, provide the Depositor, the NIMs
Insurer or such Certificateholders at such recipients' expense the most recent
list of the Certificateholders of the Trust Fund held by the Securities
Administrator, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Securities Administrator shall not be
held accountable by
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reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Book-Entry Certificates. The Regular Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository by or on behalf of the Depositor. The Book-Entry Certificates shall
initially be registered on the Certificate Register in the name of the
Depository or its nominee, and no Certificate Owner of a Book-Entry Certificate
will receive a definitive certificate representing such Certificate Owner's
interest in such Certificates, except as provided in Section 5.08. Unless and
until definitive, fully registered Certificates ("Definitive Certificates") have
been issued to the Certificate Owners of the Book-Entry Certificates pursuant to
Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the NIMs Insurer and the Securities Administrator may
deal with the Depository and the Depository Participants for all purposes
(including the making of distributions) as the authorized representative of the
respective Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Securities Administrator except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
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Section 5.07 Notices to Depository. Whenever any notice or other
communication is required to be given to Certificateholders of the Class with
respect to which Book-Entry Certificates have been issued, unless and until
Definitive Certificates shall have been issued to the related Certificate
Owners, the Securities Administrator shall give all such notices and
communications to the Depository.
Section 5.08 Definitive Certificates. If, after Book-Entry Certificates
have been issued with respect to any Certificates, (a) the Depository or the
Depositor advises the Securities Administrator that the Depository is no longer
willing, qualified or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Securities
Administrator or the Depositor is unable to locate a qualified successor, (b)
the Depositor notifies the Securities Administrator and the Depository of its
intent to terminate the book-entry system through the Depository and, upon
receipt of notice of such intent from the Depository, the Certificate Owners of
the Book-Entry Certificates agree to initiate such termination or (c) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights evidenced
by any Class of Book-Entry Certificates advise the Securities Administrator and
the Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to Certificates of such Class
through the Depository (or its successor) is no longer in the best interests of
the Certificate Owners of such Class, then the Securities Administrator shall
notify all Certificate Owners of such Book-Entry Certificates and the NIMs
Insurer, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners of such Class
requesting the same. The Depositor shall provide the Securities Administrator
with an adequate inventory of certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon surrender to the Securities
Administrator of any such Certificates by the Depository, accompanied by
registration instructions from the Depository for registration, the Securities
Administrator shall authenticate and deliver such Definitive Certificates.
Neither the Depositor nor the Securities Administrator shall be liable for any
delay in delivery of such instructions and each may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of such
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of such Definitive Certificates as Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency. The Securities Administrator
will maintain or cause to be maintained at its expense an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Service Manager - ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust,
Series 2007-A3 as offices for such purposes. The Securities Administrator will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. For the avoidance of doubt, the
Securities Administrator may satisfy the requirements of this Section 5.09 by
maintaining a single office or agency.
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ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates.
(a) [Reserved]
(b) On each Distribution Date, amounts on deposit in the Distribution
Account shall be treated for federal income tax purposes as applied to
distributions on the interests in each of the SWAP REMIC and the Lower Tier
REMIC in an amount sufficient to make the distributions on the respective
Certificates on such Distribution Date in accordance with the provisions of this
Section 6.01.
On each Distribution Date, the interest distributable with respect to the
Certificates is the interest which has accrued thereon at the then applicable
related Certificate Rate during the related Accrual Period less applicable
related Prepayment Interest Shortfalls, if any.
All calculations of interest on the Certificates will be made on the basis
of a 360-day year and the actual number of days elapsed in the applicable
Accrual Period.
(c) On each Distribution Date (or on the related Swap Payment Date, with
respect to payments to the Supplemental Interest Trust), the Interest Funds for
such Distribution Date are required to be distributed in the following order of
priority, until such Interest Funds have been fully distributed:
(i) to the Class P Certificates, any Prepayment Charges collected on
the Prepayment Charge Mortgage Loans and (A) any amounts paid by the
Sponsor or the related Servicer in respect of Prepayment Charges pursuant
to this Agreement or the related Servicing Agreement and (B) any amounts
received in respect of any indemnification paid as a result of a Prepayment
Charge being unenforceable in breach of the representations and warranties
set forth in the Mortgage Loan Purchase Agreement received during the
related Prepayment Period;
(ii) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty;
(iii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment);
(iv) concurrently, to each class of the Senior Certificates, the
Current Interest and any Interest Carry Forward Amount with respect to each
such class; provided, however, that if Interest Funds are insufficient to
make a full distribution of the aggregate Current Interest and the
aggregate Interest Carry Forward Amount to the Senior Certificates,
Interest Funds will be distributed pro rata among each class of the Senior
Certificates based upon the ratio of (x) the Current Interest and Interest
Carry Forward Amount for each class of the Senior Certificates to (y) the
total amount of Current
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Interest and any Interest Carry Forward Amount for the Senior Certificates
in the aggregate;
(v) to the Class M-1 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such class;
(vi) to the Class M-2 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(vii) to the Class M-3 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(viii) to the Class M-4 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(ix) to the Class M-5 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(x) to the Class M-6 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such class;
(xi) to the Class B-1 Certificates, the Current Interest for each such
class and any Interest Carry Forward Amount with respect to each such
class;
(xii) to the Class B-2 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class;
(xiii) to the Class B-3 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class; and
(xiv) any remainder pursuant to Section 6.01(g) hereof.
On each Distribution Date, subject to the proviso in (iv) above, the
Interest Funds received on the Group 1 Mortgage Loans will be deemed to be
distributed to the Class R and Class A-1 Certificates and Interest Funds
received on the Group 2 Mortgage Loans will be deemed to be distributed to the
Class A-2 Certificates, in each case, until the related Current Interest and
Interest Carry Forward Amount of each such class or classes of Senior
Certificates for such Distribution Date has been paid in full. Thereafter,
Interest Funds not required for such distributions are available to be applied
to if necessary, to the class or classes of Senior Certificates that are not
related to such group of Mortgage Loans.
With respect to any Distribution Date, to the extent that the Prepayment
Interest Shortfall exceeds the Compensating Interest Payment payable by the
Servicers or the Master Servicer, such amount shall reduce the Current Interest
with respect to each Class of Certificates, pro rata, based upon the amount of
interest each such Class would otherwise be entitled to receive on such
Distribution Date.
(d) [RESERVED]
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(e) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, one business day (as defined in the Swap Agreement)
prior to such Distribution Date), the Securities Administrator shall, to the
extent of funds then available, make the following distributions from the
Distribution Account of an amount equal to the Principal Distribution Amount in
the following order of priority, and each such distribution shall be made only
after all distributions pursuant to Section 6.01(c) above shall have been made
until such amount shall have been fully distributed for such Distribution Date:
(i) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty, to the extent not paid pursuant to Section
6.01(c)(ii);
(ii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment), to the extent not paid
pursuant to Section 6.01(c)(iii);
(iii) to the Senior Certificates, the Senior Principal Distribution
Amount shall be distributed as follows:
(1) the Group 1 Principal Distribution Amount shall be
distributed as follows: (I) first, to the Class R Certificate until its
Class Certificate Balance has been reduced to zero, and second, to the
Class A-1 Certificates, until the Class Certificate Balance of such Class
has been reduced to zero;
(2) the Group 2 Principal Distribution Amount will be
distributed, pro rata, based on the Class Certificate Balance (i) first, to
the Class A-2A Certificates until the Class Certificate Balance of such
class is reduced to zero, second, to the Class A-2B Certificates, until the
Class Certificate Balance of such class is reduced to zero, and third, to
the Class A-2C, until the Class Certificate Balance of such class is
reduced to zero and (ii) to the Class A-2D Certificates until the Class
Certificate Balance of such Class has been reduced to zero; provided,
however, that on and after the Distribution Date on which the aggregate
Class Certificate Balance of the Class M, Class B and Class C Certificates
has been reduced to zero, the Group 2 Principal Distribution Amount will be
distributed sequentially (i) first, to the Class A-2A, Class A-2B and Class
A-2C Certificates, pro rata, among such classes, based on their respective
Class Certificate Balances, until their Class Certificate Balances have
been reduced to zero and (ii) second, to the Class A-2D Certificates, until
its Class Certificate Balance is reduced to zero; and
(iv) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount;
(v) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount;
(vi) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount;
(vii) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount;
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(viii) to the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount;
(ix) to the Class M-6 Certificates, the Class M-6 Principal
Distribution Amount;
(x) to the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
(xi) to the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount;
(xii) to the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount; and
(xiii) any remainder pursuant to Section 6.01(g) hereof.
If on any Distribution Date any Mortgage Group would be an
Undercollateralized Group after distributions on such date, then payments that
would otherwise be made pursuant to clauses (iv) through (xiii) above (such
reallocations to be made first from the most subordinated Class of Certificates)
shall be made to the Senior Certificates of the Undercollateralized Group until
such Loan Group is no longer an Undercollateralized Group.
(f) [RESERVED]
(g) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, one business day (as defined in the Swap Agreement)
prior to such Distribution Date), the Securities Administrator shall, to the
extent of Interest Funds and Principal Funds then available, make the following
distributions up to the following amounts from the Distribution Account of the
remainders pursuant to Section 6.01(c)(xiv) and (e)(xiii) hereof and each such
distribution shall be made only after all distributions pursuant to Sections
6.01(c) and (e) above shall have been made until such remainders shall have been
fully distributed for such Distribution Date:
(i) to the Senior Certificates, any amounts due as described in the
same order of priority as set forth in Section 6.01(c)(iv) to the extent
unpaid by Interest Funds;
(ii) to the Subordinate Certificates, any amounts due as described in
the same order of priority as set forth in Section 6.01(c)(v) through
(xiii) to the extent unpaid by Interest Funds;
(iii) the Extra Principal Distribution Amount;
(iv) to the Class M-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(v) to the Class M-2 Certificates, any Unpaid Realized Loss Amount for
such class;
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(vi) to the Class M-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(vii) to the Class M-4 Certificates, any Unpaid Realized Loss Amount
for such class;
(viii) to the Class M-5 Certificates, any Unpaid Realized Loss Amount
for such class;
(ix) to the Class M-6 Certificates, any Unpaid Realized Loss Amount
for such class;
(x) to the Class B-1 Certificates, any Unpaid Realized Loss Amount for
such class;
(xi) to the Class B-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(xii) to the Class B-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiii) to the Offered Certificates, on a pro rata basis, based upon
outstanding Floating Rate Certificate Carryover for each such Class, the
Floating Rate Certificate Carryover for each such Class;
(xiv) to the Supplemental Interest Trust, any Defaulted Swap
Termination Payment to the extent not already paid; and
(xv) the remainder pursuant to Section 6.01(h) hereof.
(h) on each Distribution Date, the Securities Administrator shall allocate
the remainders pursuant to Section 6.01(g)(xv) as follows:
(i) to the Class C Certificates in the following order of priority,
(I) the Class C Current Interest, (II) the Class C Interest Carry Forward
Amount, (III) as principal on the Class C Certificate until the Class
Certificate Balance of the Class C Certificates has been reduced to zero
and (IV) the Class C Unpaid Realized Loss Amount; and
(ii) the remainder pursuant to Section 6.01(i) hereof.
(i) On each Distribution Date, the Securities Administrator shall allocate
the remainder pursuant to Section 6.01(h)(ii) hereof (i) to the Securities
Administrator to reimburse amounts or pay indemnification amounts owing to the
Securities Administrator from the Issuing Entity pursuant to Section 7.03 and
(ii) to the Class R Certificate and such distributions shall be made only after
all preceding distributions shall have been made until such remainder shall have
been fully distributed.
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(j) On each Distribution Date, after giving effect to distributions on such
Distribution Date, the Securities Administrator shall allocate the Realized Loss
Amount for the Certificates to reduce the Class Certificate Balances of the
Class C Certificates and the Subordinate Certificates in the following order of
priority:
(i) to the Class C Certificates, until the Class C Class Certificate
Balance is reduced to zero;
(ii) to the Class B-3 Certificates until the Class B-3 Class
Certificate Balance is reduced to zero;
(iii) to the Class B-2 Certificates until the Class B-2 Class
Certificate Balance is reduced to zero;
(iv) to the Class B-1 Certificates until the Class B-1 Class
Certificate Balance is reduced to zero;
(v) to the Class M-6 Certificates until the Class M-6 Class
Certificate Balance is reduced to zero;
(vi) to the Class M-5 Certificates until the Class M-5 Class
Certificate Balance is reduced to zero;
(vii) to the Class M-4 Certificates until the Class M-4 Class
Certificate Balance is reduced to zero;
(viii) to the Class M-3 Certificates until the Class M-3 Class
Certificate Balance is reduced to zero;
(ix) to the Class M-2 Certificates until the Class M-2 Class
Certificate Balance is reduced to zero; and
(x) to the Class M-1 Certificates until the Class M-1 Class
Certificate Balance is reduced to zero.
(k) Subject to Section 10.02 hereof respecting the final distribution, on
each Distribution Date the Securities Administrator shall make distributions to
each Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Securities Administrator at least five (5) Business Days prior to
the related Record Date or, if not, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Notwithstanding the foregoing, but subject to Section 10.02 hereof
respecting the final distribution, distributions with respect to Certificates
registered in the name of a Depository shall be made to such Depository in
immediately available funds.
In accordance with this Agreement, the Master Servicer shall prepare and
deliver an electronic report (the "Remittance Report") to the Securities
Administrator (or by such other
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means as the Master Servicer and the Securities Administrator may agree from
time to time) containing such data and information as to permit the Securities
Administrator to prepare the Monthly Statement to Certificateholders and make
the required distributions for the related Distribution Date. The Securities
Administrator will prepare the Monthly Report based solely upon the information
received from the Master Servicer, which in turn shall be based on information
from the Servicers and the Cap Contract Counterparty.
(l) The Securities Administrator is hereby directed by the Depositor to
execute the Corridor Contracts on behalf of the Issuing Entity in the form
presented to it by the Depositor and shall have no responsibility for the
contents of such Corridor Contracts, including, without limitation, the
representations and warranties contained therein. Any funds payable by the
Issuing Entity under the Corridor Contracts at closing shall be paid by the
Depositor. Notwithstanding anything to the contrary contained herein or in any
Corridor Contract, except as set forth in Section 2 of each Corridor Contract,
the Issuing Entity shall not be required to make any payments to the
counterparty under any Corridor Contract. Any payments received under the terms
of the related Corridor Contract will be available to pay the holders of the
related Class A-1 and Class R Certificates, Class A-2 Certificates and
Subordinate Certificates up to the amount of any Floating Rate Certificate
Carryovers remaining after all other distributions required under this Section
6.01 are made on such Distribution Date, other than Floating Rate Certificate
Carryovers attributable to the fact that Realized Loss Amounts are not allocated
to the Senior Certificates. Any amounts received under the terms of any Corridor
Contract on a Distribution Date that are not used to pay such Floating Rate
Certificate Carryovers will be distributed to the holders of the Class C
Certificates. Payments in respect of such Floating Rate Certificate Carryovers
from proceeds of a Corridor Contract shall be paid to the related Classes of
Class A-1 and Class R Certificates, Class A-2 Certificates and Subordinate
Certificates, pro rata based upon such Floating Rate Certificate Carryovers for
each such class of Class A-1 and Class R Certificates, Class A-2 Certificates
and Subordinate Certificates. Amounts received on the Class A-1 Corridor
Contract will only be available to make payments on the Class A-1 and Class R
Certificates, amounts received on the Class A-2 Corridor Contract will only be
available to make payments on the Class A-2 Certificates and amounts received on
the Subordinate Certificates Corridor Contract will only be available to make
payments on the Subordinate Certificates.
(i) The Securities Administrator shall establish and maintain,
for the benefit of the Issuing Entity and the Certificateholders, the
Corridor Contract Account. On or prior to the Corridor Contract
Termination Date, amounts, if any, received by the Securities
Administrator for the benefit of the Trust Fund in respect of the
related Corridor Contract shall be deposited by the Securities
Administrator into the Corridor Contract Account and will be used to
pay Floating Rate Certificate Carryovers on the related Class A-1 and
Class R Certificates, Class A-2 Certificates and Subordinate
Certificates to the extent provided in the immediately preceding
paragraph. With respect to any Distribution Date on or prior to the
Corridor Contract Termination Date, the amount, if any, payable by the
Cap Contract Counterparty under the related Corridor Contract will
equal the product of (i) the excess of (x) One-Month LIBOR (as
determined by the Cap Contract Counterparty and subject to a cap equal
to the rate with respect to such Distribution Date as shown under the
heading "1ML Upper Collar" in the
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schedule to the related Corridor Contract), over (y) the rate with
respect to such Distribution Date as shown under the heading "1ML
Strike Lower Collar" in the schedule to the related Corridor Contract,
(ii) an amount equal to the lesser of (x) the related Corridor
Contract Notional Balance for such Distribution Date and (y) the
outstanding Class Certificate Balance of the related classes of
Certificates and (iii) the number of days in such Accrual Period,
divided by 360. If a payment is made to the Issuing Entity under a
Corridor Contract and the Securities Administrator is required to
distribute excess amounts to the holders of the Class C Certificates
as described above, information regarding such distribution will be
included in the monthly statement made available on the Securities
Administrator's website pursuant to Section 6.03 hereof.
(ii) Amounts on deposit in the Corridor Contract Account will
remain uninvested pending distribution to Certificateholders.
(iii) Each Corridor Contract is scheduled to remain in effect
until the Corridor Contract Termination Date and will be subject to
early termination only in limited circumstances. Such circumstances
include certain insolvency or bankruptcy events in relation to the Cap
Contract Counterparty, the termination of the Trust Fund, the related
Corridor Contract becoming illegal or subject to certain kinds of
taxation and certain other events of default and termination events
(as further detailed in each Corridor Contract).
(m) On the Closing Date, the Supplemental Interest Trust shall be
established and maintained pursuant to this Agreement, as a separate trust, the
corpus of which shall be held by the Supplemental Interest Trust Trustee for the
benefit of the holders of the Certificates as a segregated subtrust of the Trust
Fund. The Supplemental Interest Trust shall hold the Swap Account, which shall
be an Eligible Account, and funds deposited in each Account therein shall be
held separate and apart from, and shall not be commingled with, any other
moneys, including, without limitation, other moneys of the Securities
Administrator or the Supplemental Interest Trust Trustee held pursuant to this
Agreement. In no event shall any funds deposited in each Account within the
Supplemental Interest Trust be credited to or made available to any other
Account of the Trust Fund. The records of the Securities Administrator shall at
all times reflect that the Supplemental Interest Trust is a subtrust of the
Trust Fund, the assets of which are segregated from other assets of the Trust
Fund.
The Supplemental Interest Trust Trustee is hereby directed by the Depositor
to execute the Swap Agreement on behalf of the Supplemental Interest Trust in
the forms presented to it by the Depositor and shall have no responsibility for
the contents of such Swap Agreement including, without limitation, the
representations and warranties contained therein. The Supplemental Interest
Trust Trustee shall have all of the rights and protections of the Securities
Administrator hereunder.
The Supplemental Interest Trust Trustee shall enforce all of the rights of
the Supplemental Interest Trust and exercise any remedies under the Swap
Agreement and, in the event the Swap Agreement is terminated as a result of the
designation by either party thereto of an Early Termination Date (as defined in
the Swap Agreement), at the direction of the Depositor,
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enter into a replacement swap agreement with a replacement counterparty
appointed by the Depositor utilizing the amounts of the net Swap Termination
Payments received.
For each Distribution Date, through and including the Distribution Date in
April 2012, the Supplemental Interest Trust Trustee shall, based on the
Significance Estimate (which shall be provided to the Supplemental Interest
Trust Trustee by the Depositor within five (5) Business Days prior to the
Distribution Date), calculate the Significance Percentage of each of the Swap
Agreement and the Corridor Contracts. If on any such Distribution Date, the
Significance Percentage is equal to or greater than 9%, the Supplemental
Interest Trust Trustee shall promptly notify the Depositor and the Depositor
shall obtain the financial information required to be delivered by the Swap
Counterparty, pursuant to the terms of the Swap Agreement. If, on any succeeding
Distribution Date through and including the Distribution Date in April 2012, the
Significance Percentage is equal to or greater than 10%, the Supplemental
Interest Trust Trustee shall promptly notify the Depositor and the Depositor
shall, within five (5) Business Days following such Distribution Date, deliver
to the Securities Administrator the financial information provided to it by the
Swap Counterparty, in ▇▇▇▇▇-compatible format for inclusion in the Form 10-D
relating to such Distribution Date.
Any Swap Termination Payment received by the Supplemental Interest Trust
Trustee shall be deposited in the Swap Account and shall be used to make any
upfront payment required under a replacement swap agreement and any upfront
payment received from the counterparty to a replacement swap agreement shall be
used to pay any Swap Termination Payment owed to the Swap Counterparty.
Notwithstanding anything contained herein, in the event that a replacement
swap agreement cannot be obtained within thirty (30) days after receipt by the
Supplemental Interest Trust Trustee of the Swap Termination Payment paid by the
terminated Swap Counterparty, the Supplemental Interest Trust Trustee shall
deposit such Swap Termination Payment into a separate, segregated non-interest
bearing account established by the Supplemental Interest Trust Trustee and the
Supplemental Interest Trust Trustee shall, on each Distribution Date following
receipt of such Swap Termination Payment, withdraw from such account, an amount
equal to the Net Swap Payment, if any, that would have been paid to the
Supplemental Interest Trust by the original Swap Counterparty (computed in
accordance with the original Swap Agreement) and distribute such amount in
accordance with Section 6.01(m)(i)-(viii) of this Agreement. Any such account
shall not be an asset of any REMIC. Any amounts remaining in such account shall
be distributed to the holders of the Class C Certificates on the Distribution
Date following the earlier of (i) the termination of the Trust Fund pursuant to
Section 10.01 and (ii) April 25, 2012.
On any Distribution Date (or in the case of any Net Swap Payments, on the
related Swap Payment Date), any Swap Termination Payments or Net Swap Payments
owed to the Swap Counterparty will be paid out of and any Net Swap Payments or
Swap Termination Payments received from the Swap Counterparty will be deposited
into the Swap Account and any payments received from the Cap Contract
Counterparty pursuant to the Corridor Contracts will be deposited into the
Corridor Contract Account. The Supplemental Interest Trust will not be an asset
of any REMIC. Funds in the Swap Account within the Supplemental Interest Trust
shall be distributed in the following order of priority by the Securities
Administrator:
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(i) to the Swap Counterparty, all Net Swap Payments, if any, owed
to the Swap Counterparty for such Distribution Date;
(ii) to the Swap Counterparty, any Swap Termination Payment,
other than a Defaulted Swap Termination Payment, if any, owed to the
Swap Counterparty;
(iii) to each class of the Senior Certificates, on a pro rata
basis, any Current Interest and any Interest Carry Forward Amount with
respect to such class to the extent unpaid;
(iv) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates in that order, any Current Interest for such class to the
extent unpaid;
(v) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates in that order, any Interest Carry Forward with respect to
such class to the extent unpaid;
(vi) to the Offered Certificates, to pay principal as described
and in the same manner and order of priority as set forth in Sections
6.01(e)(iii) through 6.01(e)(xii) in order to restore levels of the
Overcollateralization Amount, and after giving effect to distributions
from Principal Distribution Amount for each such Class;
(vii) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates, in that order, any Unpaid Realized Loss Amount for such
class to the extent unpaid;
(viii) to the Offered Certificates, on a pro rata basis, any
Floating Rate Certificate Carryover to the extent not paid based on
the amount of such unpaid Floating Rate Certificate Carryover;
(ix) to the Swap Counterparty, any Defaulted Swap Termination
Payment owed to the Swap Counterparty to the extent not already paid;
and
(x) to the Class C Certificates any remaining amount.
Notwithstanding the foregoing, however, after giving effect to proposed
distributions on any Distribution Date, the sum of the cumulative amounts
distributed pursuant to clause (vi) above and the cumulative amounts distributed
pursuant to clause (vii) above shall be limited to
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the aggregate amount of cumulative Realized Losses incurred from the Cut-off
Date through the last day of the related Prepayment Period.
Upon termination of the Trust Fund, any amounts remaining in the Swap
Account within the Supplemental Interest Trust shall be distributed pursuant to
the priorities set forth in this Section 6.01(m).
With respect to the failure of the Swap Counterparty to perform any of its
obligations under the Swap Agreement, the breach by the Swap Counterparty of any
of its representations and warranties made pursuant to the Swap Agreement, or
the termination of the Swap Agreement, the Supplemental Interest Trust Trustee
shall send any notices and make any demands required hereunder (to the extent
that a Responsible Officer of the Securities Administrator has actual knowledge
or written notice of any such failure, breach or termination).
On the Closing Date, the Swap Counterparty and the Supplemental Interest
Trust Trustee (which is hereby authorized and directed by the Depositor to enter
into such credit support annex) will enter into a credit support annex in
relation to the Swap Agreement, which annex is intended to protect the
Supplemental Interest Trust from certain ratings downgrades that might hinder
the ability of the Swap Counterparty to continue its obligations under the Swap
Agreement.
Pursuant to and in accordance with the terms and provisions of the Swap
Agreement, the Swap Counterparty may be required to post additional collateral
in connection with its obligations under the Swap Agreement. In connection with
the foregoing, the Supplemental Interest Trust Trustee may be required to
establish a Swap Posted Collateral Account.
To the extent that the Swap Counterparty remits any Posted Collateral to
the Supplemental Interest Trust Trustee under the Swap Agreement, the
Supplemental Interest Trust Trustee shall, upon receipt of the Posted
Collateral, deposit the Posted Collateral into the Swap Posted Collateral
Account and shall hold, release and disburse such collateral in accordance with
the terms and provisions of the Swap Agreement. Where a termination event occurs
with respect to the Swap Counterparty under the Swap Agreement, or where the
Swap Counterparty fulfills certain obligations to the Supplemental Interest
Trust such as finding a replacement swap counterparty or a guarantor that meets
established criteria of the Rating Agencies, the Supplemental Interest Trust
Trustee shall make payments from the Swap Posted Collateral Account in
accordance with the provisions of the Swap Agreement. Amounts held in the Swap
Posted Collateral Account will not be part of the Trust Fund and will not be
available for distribution to any Certificateholders, except to the extent
distributed to the Swap Account pursuant to the Swap Agreement. Any funds in the
form of cash held in the Swap Posted Collateral Account shall be invested by the
Supplemental Interest Trust Trustee in Permitted Investments described in clause
(ii) of the definition of Permitted Investments in accordance with the
instructions of the Swap Counterparty. Any earnings shall be remitted to the
Swap Counterparty in accordance with the Swap Agreement. Absent receipt by the
Supplemental Interest Trust Trustee of written instructions from the Swap
Counterparty, such funds shall remain uninvested.
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Section 6.02 Distributions.
(a) On each Distribution Date, other than the final Distribution Date, the
Securities Administrator shall distribute to each Certificateholder of record on
the directly preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Percentage Interest represented by such Holder's
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class, based solely on information provided to the Securities
Administrator by the Master Servicer. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such amounts,
the Securities Administrator shall determine the amount to be distributed to
each Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer or the applicable Servicer. The Securities
Administrator shall not be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Securities
Administrator on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Securities Administrator
specified in the notice to Certificateholders of such final payment.
Section 6.03 Statements to Certificateholders.
(a) On each Distribution Date, the Securities Administrator will make
available to each Certificateholder and any other interested party a statement
(the "Monthly Statement"), based on information provided by the Master Servicer
and the Servicers generally setting forth among other information with respect
to the Certificates and Mortgage Loans:
(1) the amount of the related distribution to holders of each class of
certificates allocable to principal, separately identifying (A) the
aggregate amount of any principal prepayments included therein, (B)
the aggregate amount of all scheduled payments of principal included
therein and (C) any Extra Principal Distribution Amount, in the
aggregate and with respect to the Group 1 Mortgage Loans and Group 2
Mortgage Loans;
(2) the amount of such distribution to holders of each class of
Certificates allocable to interest;
(3) the Interest Carry Forward Amount for each class of Certificates;
(4) the Class Certificate Balance of each class of Certificates after
giving effect to the distribution of principal on such Distribution
Date;
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(5) the aggregate outstanding principal balance of each class of
Certificates for the following Distribution Date;
(6) the amount of the Servicing Fee paid to or retained by the Servicers
and any amounts constituting reimbursement or indemnification of the
Servicers, the Master Servicer, the Trustee or the Securities
Administrator;
(7) the Certificate Rate for each class of Certificates for such
Distribution Date;
(8) the amount of Monthly Advances on Mortgage Loans included in the
distribution on such Distribution Date;
(9) the cumulative amount of Realized Losses in the aggregate and with
respect to the Group 1 Mortgage Loans and the Group 2 Mortgage Loans
and Applied Realized Loss Amounts in the aggregate;
(10) the amount of Realized Losses in the aggregate with respect to the
Group 1 Mortgage Loans and the Group 2 Mortgage Loans and Applied
Realized Loss Amounts in the aggregate;
(11) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 31 to 60
days, (2) 61 to 90 days and (3) 91 or more days, (B) in foreclosure
and delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more
days, and (C) in bankruptcy (determined in accordance with the OTS
method), in each case as of the close of business on the last day of
the calendar month preceding such Distribution Date, in the aggregate
and with respect to the Group 1 Mortgage Loans and the Group 2
Mortgage Loans;
(12) with respect to any Mortgage Loan that became an REO Property during
the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date;
(13) whether a Stepdown Trigger Event has occurred and is in effect;
(14) the total number and principal balance of any REO Properties as of the
close of business on the related Determination Date, in the aggregate;
(15) any Floating Rate Certificate Carryover paid and all Floating Rate
Certificate Carryover remaining on each class of the Certificates on
such Distribution Date;
(16) the number and amount of Prepayment Charges and the amount of late
payment fees received during the related Prepayment Period in the
aggregate;
(17) as of each Distribution Date, the amount, if any, received pursuant to
each Corridor Contract and the amount thereof to be paid to each class
of Certificates;
(18) as of each Distribution Date, the amount of any Net Swap Payments or
Swap Termination Payments paid or received by the Supplemental
Interest Trust
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pursuant to the Swap Agreement and the amount of any Defaulted Swap
Termination Payments paid by the Supplemental Interest Trust;
(19) the number of Mortgage Loans with respect to which (i) a reduction in
the Mortgage Interest Rate has occurred or (ii) the related borrower's
obligation to repay interest on a monthly basis has been suspended or
reduced pursuant to the Relief Act or similar state legislation; and
the amount of interest not required to be paid with respect to any
such Mortgage Loans during the related Due Period as a result of such
reductions in the aggregate and with respect to the Group 1 Mortgage
Loans and the Group 2 Mortgage Loans;
(20) the amounts distributed as interest in respect of the portion of each
class of Certificates that represents a regular or residual interest
in a REMIC and the amount of distributions on each class of
certificates not treated as distributions on a regular or residual
interest in a REMIC;
(21) the aggregate amount of all Advances with respect to the Mortgage
Loans recovered during the related Due Period:
(22) the allocation to each Class of Certificates of any Realized Losses
during the related Due Period:
(23) with respect to each Class of Certificates, the amount of any
Prepayment Interest Shortfalls on such Distribution Date; and
(24) information regarding any pool asset changes (other than in connection
with a pool asset converting into cash in accordance with its terms),
such as additions or removals in connection with pool asset
substitutions and repurchases (and purchase rates, if applicable).
The Securities Administrator may make available each month, to any
interested party, the monthly statement via the Securities Administrator's
website. The Securities Administrator will also make available on its website
any reports on Form 10-D, 10-K and 8-K that have been prepared and filed by the
Securities Administrator with respect to the Issuing Entity promptly after such
material is electronically filed with, or furnished to, the Securities and
Exchange Commission. The Securities Administrator's website will be located at
▇▇▇.▇▇▇▇▇▇▇.▇▇▇, and assistance in using the website can be obtained by calling
the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties
that are unable to use the above distribution option are entitled to have a
paper copy mailed to them via first class mail by notifying the Securities
Administrator at the following address: ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Manager -- MLMI
2007-A3. The Securities Administrator will have the right to change the way such
reports are distributed in order to make such distributions more convenient
and/or more accessible, and the Securities Administrator will provide timely and
adequate notification to such parties regarding any such changes.
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In addition, within a reasonable period of time after the end of each
calendar year, the Securities Administrator will, upon request, prepare and
deliver to each Holder of a Certificate of record during the previous calendar
year a statement containing information necessary to enable Holders of the
Certificates to prepare their tax returns. These statements will not have been
examined and reported upon by an independent public accountant.
(b) By January 30 of each year beginning in 2008, if so requested in
writing, the Securities Administrator will furnish such report to each Holder of
the Certificates of record at any time during the prior calendar year as to the
aggregate of amounts reported pursuant to subclauses (a)(ii) and (a)(v) above
with respect to the Certificates, plus information with respect to the amount of
servicing compensation and such other customary information as the Securities
Administrator may determine to be necessary and/or to be required by the
Internal Revenue Service or by a federal or state law or rules or regulations to
enable such Holders to prepare their tax returns for such calendar year. Such
obligations shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to the requirements of the Code.
(c) The Securities Administrator may satisfy the requirements of this
Section 6.03 via a single Monthly Statement, provided that such Monthly
Statement adequately addresses all of the content and delivery requirements
contained in this Section 6.03.
(d) The Master Servicer shall make available to the NIMs Insurer a copy of
the Monthly Statement.
Section 6.04 Monthly Advances. If the Monthly Payment on a Mortgage Loan
that was due on a related Due Date and is delinquent other than as a result of
application of the Relief Act and for which the related Servicer was required to
make an advance pursuant to the related Servicing Agreement exceeds the amount
deposited in the Master Servicer Collection Account that will be used for a
Monthly Advance with respect to such Mortgage Loan, the Master Servicer will
deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will, subject to
applicable law and its determination of recoverability, deposit in the Master
Servicer Collection Account not later than the related Distribution Date, an
amount equal to the remaining deficiency as of the Distribution Account Deposit
Date. Subject to the foregoing, the Master Servicer shall continue to make such
Monthly Advances through the date that the related Servicer is required to do so
under its Servicing Agreement. If applicable, on the Distribution Account
Deposit Date, the Master Servicer shall present an Officer's Certificate to the
Securities Administrator (i) stating that the Master Servicer elects not to make
a Monthly Advance in a stated amount and (ii) detailing the reason it deems the
advance to be nonrecoverable.
Section 6.05 Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an
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amount equal to the aggregate amounts required to be paid by the Servicers under
the Servicing Agreements with respect to subclause (a) of the definition of
Prepayment Interest Shortfall with respect to the Mortgage Loans for the related
Distribution Date, and not so paid by the related Servicers (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled to
any reimbursement of any Compensating Interest Payment; provided, however, the
aggregate compensating interest payments made by the Master Servicer shall not
exceed the Master Servicing Compensation.
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ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) Each of the Master Servicer and the Depositor will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.03 Indemnification from the Master Servicer and the Depositor.
(a) The Master Servicer agrees to indemnify the Indemnified Persons for,
and to hold them harmless against, any loss, liability or expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or relating to, any claim
or legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates (i) related to the Master
Servicer's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Trustee or the
Securities Administrator shall have given the Master Servicer and the Depositor
written notice of such claim or legal action promptly after the Trustee or the
Securities Administrator shall have received knowledge thereof. This indemnity
shall survive the resignation or removal of the Trustee, Master Servicer and the
Securities Administrator and the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Subsection (a) above. This indemnity shall survive the resignation or removal of
the Trustee, Master Servicer and the Securities Administrator and the
termination of this Agreement.
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Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Issuing Entity or the Certificateholders
for taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
(c) The Master Servicer, the Servicers, the Custodian and any director,
officer, employee or agent of the Master Servicer, the Servicers or the
Custodian shall be indemnified by the Issuing Entity and held harmless thereby
against any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement, an applicable Servicing Agreement or the Certificates (except to the
extent that the Master Servicer or the Custodian, as the case may be, is
indemnified by another party thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement), or to the
Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason of
the Master Servicer's, the Servicers' or the Custodian's willful misfeasance,
bad faith or gross negligence in the performance of duties hereunder or under
the Custodial Agreement, as applicable, or by reason of reckless disregard of
obligations and duties hereunder or under the Custodial Agreement, as
applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuing Entity, and the Master Servicer
shall be entitled to be reimbursed therefor out of the Master Servicer
Collection Account as provided by Section 4.03. Nothing in this Subsection
7.04(d) shall affect the Master Servicer's obligation to supervise, or to take
such actions as are necessary to ensure, the servicing and administration of the
Mortgage Loans pursuant to Section 3.01.
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be
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required to investigate or make recommendations concerning potential liabilities
which the Issuing Entity might incur as a result of such course of action by
reason of the condition of the Mortgaged Properties but shall give notice to the
Trustee if it has notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of
any Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in Section
7.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee and the NIMs Insurer, if any. No such resignation by
the Master Servicer shall become effective until MLML or the Trustee or a
successor to the Master Servicer reasonably satisfactory to the Trustee and the
NIMs Insurer shall have assumed the responsibilities and obligations of the
Master Servicer in accordance with Section 8.02 hereof. The Trustee shall notify
the Rating Agencies of the resignation of the Master Servicer. If the Master
Servicer and the Securities Administrator are the same entity, then at any time
the Master Servicer is terminated as master servicer, the Securities
Administrator shall likewise be removed as securities administrator.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor Master Servicer or the assumption of the duties of the Master
Servicer, MLML or the Trustee may make such arrangements for the compensation of
such successor master servicer out of payments on the Mortgage Loans as MLML or
the Trustee and such successor master servicer shall agree. If the successor
master servicer does not agree that such market value is a fair price, such
successor master servicer shall obtain two quotations of market value from third
parties actively engaged in the servicing of single-family mortgage loans.
Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or Master Servicing Compensation or for
any differential in the amount of the Servicing Fee or Master Servicing
Compensation paid hereunder and the amount necessary to induce any successor
servicer or successor master servicer to act as successor servicer or successor
master servicer, as applicable, under this Agreement and the transactions set
forth or provided for herein.
Section 7.07 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
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master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency's rating of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified or
withdrawn as a result of such assignment, sale and delegation, as evidenced by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Trustee an Officer's Certificate and an Opinion of Independent
Counsel, each stating that all conditions precedent to such action under this
Agreement have been completed and such action is permitted by and complies with
the terms of this Agreement. No such assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of three
Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of the Trust Fund or by the NIMs
Insurer; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and
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liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors, or
voluntarily suspends payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07; or
(vi) Any failure by the Master Servicer to deliver any annual
statement of compliance, Assessment of Compliance or Accountant's
Attestation when and as required under Section 3.16 or Section 3.17.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee (with the
written consent of the NIMs Insurer, except after a NIMs Insurer Default) or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Class Certificate Balance of the Certificates (with the written
consent of the NIMs Insurer, except after a NIMs Insurer Default), by notice in
writing to the Master Servicer (and to the Trustee if given by such
Certificateholders), with a copy to the Rating Agencies, and with the consent of
the Sponsor, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Issuing Entity or which thereafter become part of the Issuing Entity; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
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Section 8.02 Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall thereafter be subject to all the responsibilities, duties,
liabilities and limitations on liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof; provided, however, that MLML shall
have the right to either (a) immediately assume the duties of the Master
Servicer or (b) select a successor master servicer; provided further, however,
that the Trustee shall have no obligation whatsoever with respect to any
liability (other than advances deemed recoverable and not previously made)
incurred by the Master Servicer at or prior to the time of termination. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to retain
if the Master Servicer had continued to act hereunder, except for those amounts
due the Master Servicer as reimbursement permitted under this Agreement for
advances previously made or expenses previously incurred. Notwithstanding the
above, or anything herein to the contrary, the Trustee, if it becomes Master
Servicer, shall have no responsibility or obligation (i) to repurchase or
substitute any Mortgage Loan, (ii) for any representation or warranty of the
Master Servicer hereunder, and (iii) for any act or omission of either a
predecessor or successor Master Servicer other than the Trustee. The Trustee may
conduct any activity required of it as Master Servicer hereunder through an
Affiliate or through an agent. Neither the Trustee (as successor Master
Servicer) nor any other successor Master Servicer shall be deemed to be in
default hereunder due to any act or omission of a predecessor Master Servicer,
including but not limited to failure to timely deliver to the Trustee
distribution instructions, any funds required to be deposited to the Trust Fund,
or any breach of its duty to cooperate with a transfer of master servicing.
Neither the Trustee nor any other successor Master Servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused solely by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records required to be provided to it by the Master Servicer.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution which is a ▇▇▇▇▇▇ ▇▇▇- or ▇▇▇▇▇▇▇ Mac-approved servicer, the
appointment of which successor shall be approved by the NIMs Insurer (which
approval shall not be unreasonably withheld or delayed), and with respect to a
successor to the Master Servicer only, having a net worth of not less than
$10,000,000 and meeting such other standards for a successor Master Servicer as
are set forth in this Agreement, as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, in the event that the provisions of Section 7.06 shall
apply, no such compensation shall be in excess of that permitted the Trustee
under this Subsection 8.02(a), and that such successor shall undertake and
assume the
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obligations of the Trustee to pay compensation to any third Person acting as an
agent or independent contractor in the performance of master servicing
responsibilities hereunder. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. No appointment of a successor to the Master Servicer hereunder
shall be effective until the NIMs Insurer shall have consented thereto and prior
written consent of the NIMs Insurer is obtained (which consent shall not be
unreasonably withheld or delayed).
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX shall be inapplicable to the Trustee in its duties as the successor
to the Master Servicer in the servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VII, however, shall apply to it in its capacity as
successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, the NIMs Insurer, if any, and to the
Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders and the NIMs Insurer, within 60 days after the occurrence of
any Event of Default known to the Trustee, unless such Event of Default shall
have been cured, notice of each such Event of Default hereunder known to the
Trustee. The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Class Certificate Balance of the Certificates may, on
behalf of all Certificateholders, waive any default by the Master Servicer in
the performance of its obligations hereunder and the consequences thereof,
except a default in the making of or the causing to be made any required
distribution on the Certificates. Upon any such waiver of a past default, such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Trustee shall give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon reasonable, prior written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee.
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(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and subject to Section
8.02(b) use the same degree of care and skill in their exercise, as a prudent
person would exercise under the circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee and the Securities Administrator pursuant to any
provision of this Agreement, the Trustee and the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected and if the instrument is not
corrected to its satisfaction, the Trustee will provide notice thereof to the
NIMs Insurer and the Certificateholders and take such further action as directed
by the NIMs Insurer and the Certificateholders.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders from
funds in the Distribution Account as provided in Sections 6.01 and 10.02 herein
based solely on the report of the Master Servicer or the Servicers.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
neither the Trustee nor the Securities Administrator shall be liable except
for the performance of their respective duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee or the
Securities Administrator and, in the absence of bad faith on the part of
the Trustee or the Securities Administrator, respectively, the Trustee or
the Securities Administrator, respectively, may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, and conforming to the requirements
of this Agreement;
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(ii) Neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved that the Trustee or the Securities Administrator, respectively, was
negligent in ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the NIMs Insurer or
the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of the Class Certificate Balance of the Certificates, if such
action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Securities
Administrator, respectively, or exercising any trust or other power
conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee or the Securities Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee or the
Securities Administrator, respectively, has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(vii) None of the Securities Administrator, the Depositor, the Master
Servicer, any Servicer or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not
be construed to render them partners, joint venturers or agents of one
another.
Neither the Trustee (regardless of the capacity in which it is acting) nor
the Securities Administrator shall be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee or the Securities Administrator to perform, or be responsible for
the manner of performance of, any of the obligations of the Master Servicer
hereunder or under the Servicing Agreements, except during such time, if any,
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as the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Master Servicer in accordance with the terms of
this Agreement.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer Collection
Account or Distribution Account pursuant to this Agreement will be promptly so
deposited by the Master Servicer and the Securities Administrator.
(f) The Issuing Entity hereby authorizes and directs the Securities
Administrator to enter into the four Corridor Contracts on behalf of the Issuing
Entity and to perform the duties and obligations of the Issuing Entity under the
Corridor Contracts and any other agreement or instrument related thereto, in
each case in such form as the Depositor shall direct or shall approve in
writing, the execution and delivery of any such agreement by the Depositor to be
conclusive evidence of its approval thereof.
(g) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any
resolution, certificate of a Depositor, Master Servicer or Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement, other than its obligation to give notices pursuant to
this Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders or the NIMs Insurer pursuant to the provisions of this
Agreement, unless such Certificateholders or NIMs Insurer shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby. Nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer
of the Trustee's Corporate Trust Office has actual knowledge (which has not
been cured or waived), subject to Section 8.02(b), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in
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their exercise, as a prudent person would exercise under the circumstances
in the conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Class Certificate
Balance of the Certificates or the NIMs Insurer and provided that the
payment within a reasonable time to the Trustee or the Securities
Administrator, as applicable, of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee or the Securities Administrator, as applicable, reasonably
assured to the Trustee or the Securities Administrator, as applicable, by
the security afforded to it by the terms of this Agreement. The Trustee or
the Securities Administrator may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Certificateholders or the NIMs Insurer requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions
under this Agreement without the express written consent of the Securities
Administrator, which consent will not be unreasonably withheld. Neither the
Trustee nor the Securities Administrator shall be liable or responsible for
the misconduct or negligence of any of the Trustee's or the Securities
Administrator's agents or attorneys or a custodian or paying agent
appointed hereunder by the Trustee or the Securities Administrator with due
care and, when required, with the consent of the Securities Administrator;
(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or transfer
under Subsection 4.01(b) or Section 4.02, to be unclear, the Trustee or the
Securities Administrator, respectively, may require prior to such action
that it be provided by the Depositor with reasonable further instructions;
(viii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or willful
misconduct in the performance of any such act;
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(ix) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the
trust created hereby or the powers granted hereunder, except as provided in
Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall have
any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by the Sponsor
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
(xi) Any permissive right of the Trustee hereunder shall not be
construed as a duty.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than, with respect to the Securities Administrator, the
signature and countersignature of the Securities Administrator on the
Certificates) shall be taken as the statements of the Depositor, and neither the
Trustee nor the Securities Administrator shall have any responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representation as to the validity or sufficiency of the Certificates (other than
the signature and countersignature of the Securities Administrator on the
Certificates) or of any Mortgage Loan except as expressly provided in Sections
2.02 and 2.05 hereof; provided, however, that the foregoing shall not relieve
the Trustee or the Custodian of the obligation to review the Mortgage Files
pursuant to Sections 2.02 and 2.04. The Securities Administrator's signature and
countersignature (or countersignature of its agent) on the Certificates shall be
solely in its capacity as Securities Administrator of the Trust Fund and shall
not constitute the Certificates an obligation of the Securities Administrator in
any other capacity. Neither the Trustee or the Securities Administrator shall be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. Subject to the provisions of Section 2.05, neither the Trustee nor the
Securities Administrator shall be responsible for the legality or validity of
this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder or of any guaranty of a NIMs Insurer or related document
other than, with respect to the Securities Administrator, the execution and
authentication of the Certificates. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in its individual capacity or in any
capacity other than as
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Trustee hereunder may become the owner or pledgee of any Certificates with the
same rights it would have if it were not Trustee or the Securities
Administrator, as applicable, and may otherwise deal with the parties hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator shall be
paid by the Master Servicer in accordance with a side letter agreement. In
addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the administration of the trusts hereunder (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or intentional
misconduct or which is the responsibility of the Certificateholders or the Trust
Fund hereunder. If funds in the Master Servicer Collection Account are
insufficient therefor, the Trustee and the Securities Administrator shall
recover such expenses from the Depositor. Such compensation and reimbursement
obligation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
(a) The Trustee and any successor Trustee and the Securities Administrator
and any successor Securities Administrator shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P and "Aaa1" or higher by Moody's with
respect to their long-term rating and rated "BBB" or higher by S&P and "Baa1" or
higher by Moody's with respect to any outstanding long-term unsecured
unsubordinated debt, and, in the case of a successor Trustee or successor
Securities Administrator other than pursuant to Section 9.10, rated in one of
the two highest long-term debt categories of, or otherwise acceptable to, each
of the Rating Agencies and reasonably acceptable to the NIMs Insurer. If the
Trustee publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 9.06 the combined capital and surplus of such
corporation shall be deemed to be its total equity capital (combined capital and
surplus) as set forth in its most recent report of condition so published. In
case at any time the Trustee or the Securities Administrator shall cease to be
eligible in accordance with the provisions of this Section 9.06, the Trustee or
the Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an originator,
Master Servicer, Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator is in an institutional trust department of the
relevant entity, (ii) must be authorized
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to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A" by S&P or "A" Moody's. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 9.08, then the Trustee shall
either (i) perform the duties of the Securities Administrator pursuant to this
Agreement until such time as a new Securities Administrator is appointed or (ii)
petition a court of competent jurisdiction to appoint a successor securities
administrator. The Trustee shall notify the Rating Agencies of any change of
Securities Administrator.
Section 9.07 Insurance. The Securities Administrator, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance (which
may be collectively satisfied by a "Financial Institution Bond" and/or a
"Bankers' Blanket Bond"). All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for insurance typically
maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Securities
Administrator as to the Securities Administrator's compliance with this Section
9.07 shall be furnished to any Certificateholder upon reasonable written
request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign and
be discharged from the trust hereby created by giving written notice thereof to
the Depositor, the NIMs Insurer and the Master Servicer, with a copy to the
Rating Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator, as
applicable, by written instrument, in triplicate, one copy of which instrument
shall be delivered to each of the resigning Trustee or Securities Administrator,
as applicable, the successor Trustee or Securities Administrator, as applicable.
If no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer are the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time the
Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee, or shall be entitled to remove the Securities
Administrator, as applicable, and appoint a successor Trustee or Securities
Administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or Securities
Administrator, as applicable.
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(c) The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Trust Fund, with the consent of the NIMs Insurer, or
the NIMs Insurer, may at any time remove the Trustee or the Securities
Administrator and appoint a successor Trustee or Securities Administrator by
written instrument or instruments, in quadruplicate, signed by such Holders or
their attorneys-in-fact duly authorized (or the NIMs Insurer), one complete set
of which instruments shall be delivered to the Depositor, the Trustee, the
Securities Administrator (if the Trustee is removed), the Trustee (if the
Securities Administrator is removed), and the Trustee or Securities
Administrator so removed and the successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator acceptable to the NIMs Insurer as provided
in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor, the
Master Servicer, the NIMs Insurer and its predecessor Trustee or Securities
Administrator an instrument accepting such appointment hereunder. The
resignation or removal of the predecessor Trustee or Securities Administrator
shall then become effective and such successor Trustee or Securities
Administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator herein. The predecessor Trustee or Securities Administrator shall
after payment of its outstanding fees and expenses promptly deliver to the
successor Trustee or Securities Administrator, as applicable, all assets and
records of the Trust held by it hereunder, and the Depositor and the predecessor
Trustee or Securities Administrator, as applicable, shall execute and deliver
such instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee or
Securities Administrator, as applicable, all such rights, powers, duties and
obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee or
Securities Administrator hereunder to all Certificateholders at their addresses
as shown in the Certificate Register and to the Rating Agencies. The Depositor
shall pay the cost of any mailing by the successor Trustee or Securities
Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state
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bank or trust company or national banking association resulting from any merger,
conversion or consolidation to which the Trustee or the Securities
Administrator, respectively, shall be a party, or any state bank or trust
company or national banking association succeeding to all or substantially all
of the corporate trust business of the Trustee or the Securities Administrator,
respectively, shall be the successor of the Trustee or the Securities
Administrator, respectively, hereunder, provided such state bank or trust
company or national banking association shall be eligible under the provisions
of Section 9.06. Such succession shall be valid without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee, the NIMs Insurer (which approval shall not be unreasonably withheld or
delayed) and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor, the NIMs Insurer and the Trustee may consider necessary or desirable.
(b) If the Depositor or the NIMs Insurer shall not have joined in such
appointment within 15 days after the receipt by it of a written request so to
do, the Trustee shall have the power to make such appointment without the
Depositor or the NIMs Insurer.
(c) No co-Master Servicer or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its
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acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
(g) No Trustee under this Agreement shall be personally liable by reason of
any act or omission of another Trustee under this Agreement. The Depositor and
the Trustee acting jointly, with the consent of the NIMs Insurer, may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement and this
Section 9.12 shall be made on Forms 1066 or other appropriate federal tax or
information return for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests and residual
interest in each REMIC shall be as designated in the Preliminary Statement and
this Section 9.12.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Latest Possible Maturity Date.
(c) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(d) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall not
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be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by this Section.
(e) The Securities Administrator shall prepare and file, and the Trustee
shall sign, all of each REMIC's and the Trust Fund's federal and appropriate
state tax and information returns as such REMIC's direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(f) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any
person designated in Section 860E(e)(3) of the Code.
(g) The Securities Administrator and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to create or maintain
the status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Securities Administrator nor the Holder of any Residual Certificate shall
knowingly take any action, cause any REMIC to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
REMIC as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Securities Administrator has received a REMIC Opinion (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
In addition, prior to taking any action with respect to any REMIC or the assets
therein, or causing any REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Securities Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to any REMIC, and no such Person shall take any such action or cause any
REMIC to take any such action as to which the Securities Administrator has
advised it in writing that an Adverse REMIC Event could occur; provided,
however, that if no Adverse REMIC Event would occur but such action could result
in the imposition of additional taxes on the Residual Certificateholders, no
such Person shall take any such action, or cause any REMIC to take any such
action without the written consent of the Residual Certificateholders.
(h) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out
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of other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the case
may be.
(i) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC created hereunder, an
application for an employer identification number on IRS Form SS-4 or by any
other acceptable method. The Securities Administrator shall also file a Form
8811 as required. The Securities Administrator, upon receipt from the IRS of the
Notice of Taxpayer Identification Number Assigned, shall upon request promptly
forward a copy of such notice to the Depositor. The Securities Administrator
shall furnish any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Depositor shall cause
each Servicer to provide the Securities Administrator with such information as
is necessary for the Securities Administrator to prepare such reports.
(j) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(k) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
(l) The Class R Holder shall act as "tax matters person" with respect to
each REMIC and irrevocably appoints the Securities Administrator to act as its
agent in such roles.
(m) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, the Trustee
shall sign, and the Securities Administrator shall file federal tax returns, all
in accordance with this Section 9.12. The Securities Administrator shall prepare
and file, and the Trustee shall sign, such state income tax returns and such
other returns as may be required by applicable law relating to the Trust Fund,
and, if required by state law, and shall file any other documents to the extent
required by applicable state tax law (to the extent such documents are in the
Securities Administrator's possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and Form 1099 supplemental
tax information and such other information within the control of the Securities
Administrator as the Depositor may reasonably request in writing, and shall
distribute to each Certificateholder such forms and furnish such information
within the control of the Securities Administrator as are required by the Code
and the REMIC Provisions to be furnished to them, and will prepare and
distribute to Certificateholders Form 1099 (supplemental tax information) (or
otherwise furnish information within the control of the Securities
Administrator) to the extent required by applicable law.
(n) None of the Securities Administrator, the Trustee or the Depositor, as
assignees under this Agreement, shall provide any consent pursuant to this
Agreement or knowingly take any action under this Agreement that would conflict
with or violate the provisions of this Section 9.12.
(o) The parties intend that the portion of the Trust Fund consisting of the
right to receive the payments distributable to the Class P Certificates shall be
treated as a "grantor trust"
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under the Code, for the benefit of the holders of the Class P Certificates, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Securities Administrator shall (i) furnish or
cause to be furnished to the holders of the Class P Certificates information
regarding their allocable share of the income with respect to such grantor trust
and (ii) file or cause to be filed with the Internal Revenue Service, and the
Trustee shall sign, Form 1041 (together with any necessary attachments) and such
other forms as may be applicable.
(p) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount on the
Mortgage Loans, that the Securities Administrator reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall, together with its monthly
report to such Certificateholders, indicate such amount withheld.
(q) The Trustee and the Securities Administrator agree to indemnify the
Trust Fund and the Depositor for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of a breach of the Trustee's
covenants and the Securities Administrator's covenants, respectively, set forth
in this Section 9.12; provided, however, such liability and obligation to
indemnify in this paragraph shall not be joint and several and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
(r) The Securities Administrator covenants and agrees that it shall act as
agent (and the Securities Administrator is hereby appointed to act as agent) of
the Tax Matters Person on behalf of each of the REMICs provided for herein and
that in such capacity it shall: (a) to the extent that they are under its
control conduct the affairs of each of the REMICs provided for herein at all
times that any Certificates are outstanding so as to maintain the status of each
of the REMICs provided for herein as a REMIC under the REMIC Provisions; (b) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of tax upon any such REMIC; (c) not knowingly
or intentionally take any action or omit to take any action that would cause the
termination of the grantor trust status under Subpart E, Part I of Subchapter J
of the Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; and (d) as and when necessary and
appropriate, represent each of the REMICs provided for herein in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any of the REMICs provided for herein, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any of the REMICs provided for herein,
and otherwise act on behalf of each of the REMICs provided for herein in
relation to any tax matter involving any of such REMICs or any controversy
involving the Trust Fund.
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(s) Each of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee agrees not to take or omit to take knowingly or
intentionally, any action or omit to take any action that would cause the
termination of the REMIC status of any of the REMICs provided for herein or
result in the imposition of a tax upon any of the REMICs provided for herein.
(t) [reserved].
(u) The SWAP REMIC shall consist of all of the assets of the Trust Fund,
other than (i) amounts distributable to the Class P Certificates, (ii) the
interests issued by the SWAP REMIC and the interests issued by the Lower Tier
REMIC, (iii) the grantor trusts described in Section 9.12 hereof, (iv) each
Corridor Contract and the Corridor Contract Account, (v) the Swap Agreement and
the Supplemental Interest Trust. The SWAP REMIC shall issue the SWAP REMIC
Regular Interests, which shall be designated as regular interests of such REMIC,
and shall issue the Class SWR Interest, which shall be designated as the sole
class of residual interest in the SWAP REMIC. Each of the SWAP REMIC Regular
Interests shall have the characteristics set forth in the Preliminary Statement
and this Section 9.12.
The Depositor hereby instructs and authorizes the Securities
Administrator to make an appropriate election to treat each of the Upper Tier
REMIC, the Lower Tier REMIC and the SWAP REMIC as a REMIC. The Trustee shall
sign the returns providing for such elections and such other tax or information
returns which are provided to it. This Agreement shall be construed so as to
carry out the intention of the parties that each of the Upper Tier REMIC, the
Lower Tier REMIC and the SWAP REMIC be treated as a REMIC at all times prior to
the date on which the Trust Fund is terminated.
(v) The Lower Tier REMIC shall consist of the SWAP REMIC Regular Interests.
The Lower Tier REMIC shall issue the Lower Tier REMIC Regular Interests, which
shall be designated as regular interests of such REMIC, and shall issue the
Class LTR Interest that shall be designated as the sole class of residual
interest in the Lower Tier REMIC. Each of the Lower Tier REMIC Regular Interests
shall have the characteristics set forth in its definition, the Preliminary
Statement and this Section 9.12.
The assets of the Upper Tier REMIC shall be the Lower Tier REMIC
Regular Interests. The REMIC Regular Interests shall be designated as the
regular interests in the Upper Tier REMIC and the Residual Interest shall be
designated as the sole class of residual interest in the Upper Tier REMIC. For
federal income tax purposes, the pass-through rate on each REMIC Regular
Interest (other than the Uncertificated Class C Interest and the Class UT-IO
Interest) and on the sole class of residual interest in the Upper Tier REMIC
shall be subject to a cap equal to the Upper Tier REMIC Net WAC Cap.
The beneficial ownership of the Class SWR Interest and the Class LTR
Interest and the Residual Interest shall be represented by the Class R
Certificate. The Class SWR Interest and the Class LTR Interest shall not have a
principal balance or bear interest.
(w) (i) It is intended that the rights of each Class of the Certificates
(other than the Class C and Class P Certificates) to receive payments in respect
of Excess Interest shall be treated as a right in interest rate cap agreements
written by the Class C Certificateholders in favor
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of the holders of each Class of the Certificates (other than the Class C and
Class P Certificates) and such shall be accounted for as property held separate
and apart from the regular interests in the Upper Tier REMIC held by the holders
of the Senior Certificates (other than the Class R Certificate), Class M
Certificates, Class B Certificates and the residual interest in the Upper Tier
REMIC held by the holder of the Class R Certificate. For information reporting
requirements, the rights of the Certificates (other than the Class C and Class P
Certificates) to receive payments in respect of Excess Interest shall be assumed
to have zero or a de minimis value. This provision is intended to satisfy the
requirements of Treasury Regulations Section 1.860G-2(i) for the treatment of
property rights coupled with REMIC interests to be separately respected and
shall be interpreted consistently with such regulation. On each Distribution
Date, to the extent that any of the Certificates (other than the Class C and
Class P Certificates) receive payments in respect of Excess Interest, such
amounts, to the extent not derived from payments on the Corridor Contracts or
the Swap Agreement, will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the amounts specified in Section
6.01(h) and then paid to the relevant Class of Certificates pursuant to the
related interest rate cap agreement.
(ii) It is intended that the beneficial owners of the Certificates
(other than the Class P and Class C Certificates) shall be treated as having
entered into a notional principal contract with respect to the beneficial owners
of the Class C Certificates. Pursuant to each such notional principal contract,
all beneficial owners of each Class of Certificates (other than the Class P and
Class C Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the beneficial owners of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the Corresponding REMIC Regular Interest of such Class of
Certificates over (ii) the amount payable on such Class of Certificates on such
Distribution Date (such excess, a "Class Payment Shortfall"). A Class Payment
Shortfall shall be allocated to each Class of Certificates to the extent that
interest accrued on such Class for the related Accrual Period at the Certificate
Rate for a Class, computed by substituting "Upper Tier REMIC Net WAC Cap" for
the Available Funds Cap set forth in the definition thereof, exceeds the amount
of interest accrued on such Certificate at the Certificate Rate (without such
substitution) for the related Accrual Period, and a Class Payment Shortfall
payable from principal collections shall be allocated to the most subordinate
Class of Certificates with an outstanding principal balance to the extent of
such balance.
(x) The parties intend that the portion of the Trust Fund consisting of the
Uncertificated Class C Interest, the uncertificated Class UT-IO Interest, the
rights to receive payments deemed made by the Certificates (other than the Class
P and Class C Certificates) in respect of notional principal contracts described
in Section 9.12(w)(ii), the Corridor Contracts, the Corridor Contract Account,
the Supplemental Interest Trust which holds the Swap Agreement, and the
obligation of the holders of the Class C Certificates to pay amounts in respect
of Excess Interest to the holders of the Certificates (other than the Class C
and Class P Certificates) shall be treated as a "grantor trust" under the Code,
for the benefit of the holders of the Class C Certificates, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance of
such intention, the Securities Administrator shall (i) furnish or cause to be
furnished to the holders of the Class C Certificates information regarding their
allocable share, if any, of the income with respect to such grantor trust, (ii)
file or cause to be filed with the Internal Revenue Service Form 1041 (together
with any necessary attachments) and such other
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forms as may be applicable and (iii) comply with such information reporting
obligations with respect to payments from such grantor trust to the holders of
Certificates (other than the Class P Certificates) as may be applicable under
the Code.
(y) The parties intend that amounts paid to the Swap Counterparty under the
Swap Agreement shall be deemed for federal income tax purposes to be paid by the
Class C Certificates first, out of funds deemed received in respect of the Class
UT-IO Interest, second, out of funds deemed received in respect of the
Uncertificated Class C Interest and third, out of funds deemed received in
respect of notional principal contracts described in Section 9.12(w)(ii), and
the provisions hereof shall be interpreted consistently with this intention. On
each Distribution Date, to the extent that amounts paid to the Swap Counterparty
are deemed paid out of funds received in respect of the Uncertificated Class C
Interest, such amounts will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the amounts specified in Section
6.01(h) and then paid to the Swap Counterparty pursuant to the Swap Agreement.
The Supplemental Interest Trust shall be an "outside reserve fund" for
federal income tax purposes and not an asset of any REMIC. Furthermore, the
Holders of the Class C Certificates shall be the beneficial owners of the
Supplemental Interest Trust for all federal income tax purposes, and shall be
taxable on all income earned thereon.
(z) All payments of principal and interest at the Net Mortgage Rate on each
of the Mortgage Loans (other than amounts distributable to the Class P
Certificates) received by the SWAP REMIC with respect to the Mortgage Loans
shall be paid to the SWAP REMIC Regular Interests until the principal balance of
all such interests have been reduced to zero and any losses allocated to such
interests have been reimbursed. Any available funds remaining in the SWAP REMIC
on a Distribution Date after distributions to the SWAP REMIC Regular Interests
shall be distributed to the Class R Certificates on account of the Class SWR
Interest. On each Distribution Date, the Securities Administrator shall
distribute the aggregate Interest Funds (net of expenses (other than any Net
Swap Payment or Swap Termination Payment required to be made to the Swap
Counterparty) and payments to the Class P Certificates) with respect to each of
the SWAP REMIC Regular Interests based on the interest rates for each such SWAP
REMIC Regular Interest. On each Distribution Date, the Securities Administrator
shall distribute the aggregate Principal Funds with respect to the Group 1
Mortgage Loans first to the Class 1-SW1 Interest until its principal balance is
reduced to zero and then sequentially to each of the other SWAP REMIC Regular
Interests beginning with designation "1" in ascending order of their numerical
class designation, in equal amounts to each such class in such numerical
designation, until the principal balance of each such class is reduced to zero.
All losses with respect to the Group 1 Mortgage Loans shall be allocated among
the SWAP REMIC Regular Interests beginning with the designation "1" in the same
manner that principal distributions are allocated. On each Distribution Date,
the Securities Administrator shall distribute the aggregate Principal Funds with
respect to the Group 2 Mortgage Loans first to the Class 2-SW2 Interest until
its principal balance is reduced to zero and then sequentially to each of the
other SWAP REMIC Regular Interests beginning with designation "2" in ascending
order of their numerical class designation, in equal amounts to each such class
in such numerical designation, until the principal balance of each such class is
reduced to zero. All losses with respect to the Group 2 Mortgage Loans shall be
allocated among the SWAP
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REMIC Regular Interests beginning with the designation "2" in the same manner
that principal distributions are allocated. Subsequent Recoveries with respect
to the Group 1 and Group 2 Mortgage Loans shall be allocated in the reverse
fashion from the manner in which losses are allocated.
All payments received by the Lower Tier REMIC with respect to the SWAP
REMIC Regular Interests shall be paid to the Lower Tier REMIC Regular Interests
until the principal balance of all such interests have been reduced to zero and
any losses allocated to such interests have been reimbursed. Any excess amounts
shall be distributed to the Class LTR Interest. On each Distribution Date,
payments and losses shall be allocated among the Lower Tier REMIC Regular
Interests so that (i) each of the Lower Tier REMIC I Marker Interests shall have
a principal balance equal to 25% of the principal balance of the Corresponding
Certificates, (ii) the Class LTIX Interest has a principal balance equal to the
excess of (x) 50% of the remaining principal balance of the Mortgage Loans over
(y) the aggregate principal balance of the Lower Tier REMIC I Marker Interests
(if necessary to reflect an increase in overcollateralization, accrued and
unpaid interest on the Class LTIX interest may be added to its principal amount
to achieve this result) and (iii) the aggregate principal amount of the Class
LTII1A Interest, Class LTII1B Interest, Class LTII2A Interest, Class LTII2B
Interest and Class LTIIX Interest shall equal 50% of the remaining principal
balance of the Mortgage Loans. Distributions and losses allocated to the Lower
Tier REMIC Regular Interests described in clause (iii) of the preceding sentence
will be allocated among such Lower Tier REMIC Regular Interests in the following
manner: (x) such distributions shall be deemed made to such Lower Tier REMIC
Regular Interests first, so as to keep the principal balance of the each such
Lower Tier REMIC Regular Interest with "B" at the end of its designation equal
to 0.05% of the aggregate scheduled principal balance of the Mortgage Loans in
the related Loan Group and second, to such Lower Tier REMIC Regular Interests
with "A" at the end of its designation so that the uncertificated principal
balance of each such Lower Tier REMIC Regular Interest is equal to 0.05% of the
excess of (I) the aggregate scheduled principal balance of the Mortgage Loans in
the related Loan Group over (II) the aggregate principal balance of the Group 1
Certificates, in the case of the Class LTII1A Interest or the Group 2
Certificates, in the case of the Class LTII2A Interest (except that if 0.05% of
any such excess is greater than the principal amount of the related Lower Tier
REMIC II Marker Interest with "A" at the end of its designation, the least
amount of principal shall be distributed to each Lower Tier REMIC II Marker
Interest with "A" at the end of its designation such that the Lower Tier REMIC
Subordinated Balance Ratio is maintained) and finally, any remaining
distributions of principal to the Class LTIIX Interest and (y) such losses shall
be allocated among the Lower Tier REMIC Regular Interests described in clause
(iii) of the preceding sentence first, so as to keep the principal balance of
the each such Lower Tier REMIC Regular Interest with "B" at the end of its
designation equal to 0.05% of the aggregate scheduled principal balance of the
Mortgage Loans in the related Loan Group; second, to such Lower Tier REMIC
Regular Interests with "A" at the end of its designation so that the
uncertificated principal balance of each such Lower Tier REMIC Regular Interest
is equal to 0.05% of the excess of (I) the aggregate scheduled principal balance
of the Mortgage Loans in the related Loan Group over (II) the aggregate
principal balance of the Group 1 Certificates, in the case of the Class LTII1A
Interest or the Group 2 Certificates, in the case of the Class LTII2A Interest
(except that if 0.05% of any such excess is greater than the principal amount of
the related Lower Tier REMIC II Marker Interest with "A" at the end of its
designation, the least amount of losses shall be allocated to each Lower REMIC
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II Marker Interest with "A" at the end of its designation such that the Lower
Tier REMIC Subordinated Balance Ratio is maintained) and finally, any remaining
losses to the Class LTIIX Interest. Notwithstanding the preceding two sentences,
however, losses not allocated to any Class of Certificates will not be allocated
to any Lower Tier REMIC Regular Interests. All computations with respect to the
Lower Tier REMIC Regular Interests shall be taken out to ten decimal places.
Any available funds remaining in the Lower Tier REMIC on a
Distribution Date after distributions to the Lower Tier REMIC Regular Interests
shall be distributed to the Class R Certificates in respect of the Class LTR
Interest.
If on any Distribution Date the Class Certificate Balance of any Class
of Certificates is increased pursuant to the last sentence of the definition of
"Class Certificate Balance", then there shall be an equivalent increase in the
principal amounts of the Lower Tier REMIC Regular Interests, with such increase
allocated (before the making of distributions and the allocation of losses on
the Lower Tier REMIC Regular Interests on such Distribution Date) among the
Lower Tier REMIC Regular Interests so that, to the greatest extent possible, (i)
each of the Lower Tier REMIC I Marker Interests has a principal balance equal to
25% of the principal balance of the Corresponding Certificates, (ii) the Class
LTIX Interest has a principal balance equal to the excess of (x) 50% of the
remaining principal balance of the Mortgage Loans over (y) the aggregate
principal balance of the Lower Tier REMIC I Marker Interests and (iii) the
aggregate principal amount of the Lower Tier REMIC II Marker Interests and the
Class LTIIX Interest shall equal 50% of the remaining principal balance of the
Mortgage Loans. Allocations in connection with clause (iii) shall be made so
that, to the greatest extent possible, (a) the principal balance of each Lower
Tier REMIC II Marker Interest with "B" at the end of its designation equals
0.05% of the aggregate scheduled principal balance of the Mortgage Loans in
related Loan Group, (b) the principal balance of each Lower Tier REMIC II Marker
Interest with "A" at the end of its designation equals 0.05% of the excess of
(x) the aggregate scheduled principal balance of the Mortgage Loans in related
Loan Group over (y) the aggregate principal balance of the Group 1 Certificates
in the case of the Class LTII1A Interest or the Group 2 Certificates in the case
of the Class LTII2A Interest and (c) any remaining allocations are made to the
Class LTIIX Interest.
For purposes of this Section 9.12, (i) the Class LTII1A Interest and
Class LTII1B Interest shall be related to Loan Group 1 and (ii) the Class LTII2A
Interest and Class LTII2B Interest shall be related to Loan Group 2.
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
created hereby with respect to that portion of the Trust Fund relating to the
Certificates shall terminate upon the earlier of (a) an Optional Termination and
(b) the later of (i) the maturity or other liquidation of the last Mortgage Loan
remaining in the Trust Fund (or any Monthly Advance with respect thereto) and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador
of the United States to the Court of St. James's, living on the date hereof and
(ii) the Latest Possible Maturity Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Securities Administrator shall attempt to terminate that
portion of the Trust Fund relating to the Certificates by conducting an auction
of all of the Mortgage Loans and REO Properties via a solicitation of bids from
at least three (3) bidders, each of which shall be a nationally recognized
participant in mortgage finance (the "Auction"). In conducting such auction, the
Securities Administrator shall solicit the holders of the Class C Certificates
(only with respect to the holders of such Class C Certificates whose names
appear on the Securities Administrator's certificate register) to participate in
such Auction; however, the holders of the Class C Certificates are under no
obligation to participate. The Depositor and the Securities Administrator agree
to work in good faith to develop bid procedures in advance of the Initial
Optional Termination Date to govern the operation of the Auction. The Securities
Administrator shall be entitled to retain an investment banking firm and/or
other agents in connection with the Auction, the cost of which shall be included
in the Optional Termination Price (unless an Optional Termination does not occur
in which case such costs shall be an expense of the Issuing Entity). The
Securities Administrator shall accept the highest bid received at the Auction;
provided that the amount of such bid equals or exceeds the Optional Termination
Price. The Securities Administrator shall determine the Optional Termination
Price based upon information provided by (i) the Master Servicer with respect to
the amounts described in clauses (A) and (B) of the definition of "Optional
Termination Price" (other than Securities Administrator's expenses) and (ii) the
Depositor with respect to the information described in clause (C) of the
definition of "Optional Termination Price." The Securities Administrator may
conclusively rely upon the information provided to it in accordance with the
immediately preceding sentence and shall not have any liability for the failure
of any party to provide such information. Notwithstanding anything herein to the
contrary, only an amount equal to the Optional Termination Price, reduced by the
portion thereof consisting of the sum of (x) any Swap Termination Payment and
(y) the amount of any unpaid Net Swap Payments and any other amounts owed to the
Swap Counterparty that would not otherwise be funded by the Optional Termination
Price but for clause (E) of the definition of "Optional Termination Price" (such
portion, the "Swap Optional Termination Payment"), shall be made available for
distribution to the Certificates. The Swap Optional Termination Payment shall be
withdrawn by the Securities
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Administrator from the Certificate Account and remitted to the Supplemental
Interest Trust for payment to the Swap Counterparty. The Swap Optional
Termination Payment shall not be part of any REMIC and shall not be paid into
any account which is part of any REMIC.
If an Optional Termination does not occur as a result of the Auction's
failure to achieve the Optional Termination Price, the NIMs Insurer (or the
Master Servicer, if the NIMs Insurer does not do so) may, on any Distribution
Date following such Auction, at its option, terminate that portion of the Trust
Fund relating to the Certificates by purchasing all of the Mortgage Loans and
REO Properties at a price equal to the Optional Termination Price. In connection
with such termination, the Optional Termination Price shall be delivered to the
Securities Administrator no later than the Business Day immediately preceding
the related Distribution Date. Notwithstanding anything to the contrary herein,
the Optional Termination Amount paid to the Securities Administrator by the
winning bidder at the Auction or by the NIMs Insurer or by the Master Servicer
shall be deposited by the Securities Administrator directly into the
Distribution Account immediately upon receipt. Upon any termination as a result
of an Auction, the Securities Administrator shall, out of the Optional
Termination Amount deposited into the Distribution Account, (x) pay the
Securities Administrator its costs and expenses necessary to conduct the Auction
and any other unreimbursed amounts owing to it and (y) pay to the Master
Servicer or Servicer, the aggregate amount of any unreimbursed out-of-pocket
costs and expenses owed to the Master Servicer or Servicer and any unpaid or
unreimbursed Servicing Fees, Monthly Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, in the
event that the Securities Administrator and the Trustee receive the written
opinion of a nationally recognized participant in mortgage finance acceptable to
the Sponsor that the Mortgage Loans and REO Properties to be included in the
Auction will not be saleable at a price sufficient to achieve the Optional
Termination Price, the Securities Administrator need not conduct the Auction. In
such event, the NIMs Insurer, if any, and the Master Servicer in the event the
NIMs Insurer declines to exercise its option, shall have the option to purchase
the Mortgage Loans and REO Properties at the Optional Termination Price as of
the Initial Optional Termination Date.
Section 10.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Securities Administrator determines
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund relating to the Mortgage Loans other than the funds in the Master
Servicer Collection Account, the Securities Administrator shall send a final
distribution notice promptly to each Certificateholder and the NIMs Insurer or
(ii) the Securities Administrator determines that a Class of Certificates shall
be retired after a final distribution on such Class, the Securities
Administrator shall notify the Certificateholders within seven (7) Business Days
after such Determination Date that the final distribution in retirement of such
Class of Certificates is scheduled to be made on the immediately following
Distribution Date. Any final distribution made pursuant to the immediately
preceding sentence will be made only upon presentation and surrender of the
Certificates at the office of the Securities Administrator.
Notice of any partial termination of the Issuing Entity, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution
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and cancellation, shall be given promptly by the Securities Administrator by
letter to Certificateholders mailed no later than the last calendar day of the
month immediately preceding the month of such final distribution (or with
respect to an Auction, mailed no later than one Business Day following
completion of such Auction). Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated, (b)
the location of the office or agency at which such presentation and surrender
must be made, and (c) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Securities Administrator will give such notice to the NIMs insurer, if any,
the Swap Counterparty and to each Rating Agency at the time such notice is given
to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be deposited in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon receipt of written notice of such final deposit with respect
to the Issuing Entity and the receipt by the Trustee, or its Custodian, of a
Request for Release therefor, the Trustee, or its Custodian, shall promptly
release to the Securities Administrator, the NIMs Insurer or the Master
Servicer, as applicable, the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account in
the order and priority set forth in Section 6.01 hereof on the final
Distribution Date and in proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Issuing Entity. If within one
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Issuing Entity that remain subject
hereto. Upon payment to the Class R Certificateholders of such funds and assets,
the Securities Administrator shall have no further duties or obligations with
respect thereto.
Section 10.03 Additional Termination Requirements.
(a) In the event the Securities Administrator, the NIMs Insurer or the
Master Servicer exercises its purchase option as provided in Section 10.01, that
portion of the Trust Fund relating to the Mortgage Loans shall be terminated in
accordance with the following additional requirements, unless the Securities
Administrator shall have been furnished with an Opinion of Counsel to the effect
that the failure of the Issuing Entity to comply with the requirements of this
Section will not (i) result in the imposition of taxes on "prohibited
transactions" of the Issuing
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Entity as defined in Section 860F of the Code or (ii) cause any REMIC
constituting part of the Issuing Entity to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date, the
Securities Administrator shall adopt and sign a plan of complete
liquidation of the Issuing Entity as provided to it by the terminating
purchaser, meeting the requirements of a "qualified liquidation" under
Section 860F of the Code and any regulations thereunder; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Securities
Administrator shall sell all of the assets of the Issuing Entity for cash
pursuant to the terms of the plan of complete liquidation.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to appoint the Securities Administrator as their attorney in fact to: (i) adopt
such a plan of complete liquidation (and the Certificateholders hereby appoint
the Securities Administrator as their attorney in fact to sign such plan) as
appropriate and (ii) to take such other action in connection therewith as may be
reasonably required to carry out such plan of complete liquidation all in
accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties. The parties intend that each REMIC shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, with the consent
of the NIMs Insurer and without the consent of any of the Certificateholders to:
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or
questions arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement; provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel addressed to the Securities Administrator to such
effect, adversely affect in any material respect the interests of any
Certificateholder; provided, further, however, that such amendment will
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be deemed to not adversely affect in any material respect the interest of
any Holder and the foregoing Opinion of Counsel shall not be required if
the Person requesting such amendment obtains a letter from each Rating
Agency stating that such amendment will not result in a reduction or
withdrawal of its rating of any Class of the Certificates, it being
understood and agreed that any such letter in and of itself will not
represent a determination as to the materiality of any such amendment and
will represent a determination only as to the credit issues affecting any
such rating.
The Securities Administrator shall not enter into any amendment to this
Agreement that could have a materially adverse effect on the Cap Contract
Counterparty or the Swap Counterparty without first obtaining the prior written
consent of the Cap Contract Counterparty or Swap Counterparty, respectively.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of any of the
REMICs provided for herein as REMICs under the Code or to avoid or minimize the
risk of the imposition of any tax on the Issuing Entity or any of the REMICs
provided for herein pursuant to the Code that would be a claim against the
Issuing Entity at any time prior to the final redemption of the Certificates,
provided that the Trustee, the NIMs Insurer and the Securities Administrator
shall have been provided an Opinion of Counsel addressed to the Trustee and the
Securities Administrator, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the Trustee
and the Securities Administrator, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
(b) The Securities Administrator shall not enter into any amendment to this
Agreement that could have a materially adverse effect on the Cap Contract
Counterparty or the Swap Counterparty without first obtaining the prior written
consent of the Cap Contract Counterparty or Swap Counterparty, respectively.
(c) This Agreement may also be amended from time to time by the Master
Servicer, the Depositor, the Securities Administrator and the Trustee, and the
Assignment Agreements may also be amended from time to time by the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of the Class
Certificate Balance of the Certificates or of the applicable Class or Classes,
if such amendment affects only such Class or Classes, with the consent of the
NIMs Insurer, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Regular Certificate without the consent of the Holder of such Regular
Certificate, or (ii) reduce the aforesaid percentage of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all Certificates then outstanding. Notwithstanding any contrary
provision of this Agreement, the Trustee shall not consent to any amendment to
this Agreement unless it shall have first received an Opinion of Counsel
addressed
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to the Trustee, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment is permitted hereunder and will not cause the imposition of
any tax on the Issuing Entity, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written notification of
the substance of such amendment to each Certificateholder, with a copy to the
Rating Agencies.
(e) In the case of an amendment under Subsection 11.02(c) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(f) Prior to the execution of any amendment to this Agreement, the Trustee
and the NIMs Insurer shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and will not adversely affect the status of any REMIC created
hereunder. The Trustee and the Securities Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's or the
Securities Administrator's own respective rights, duties or immunities under
this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Issuing Entity upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Issuing Entity, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Issuing Entity, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Issuing Entity, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to establish the Certificateholders
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from time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Trustee a written notice of a continuing default, as herein provided, (ii) the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs and expenses and liabilities to be incurred therein or
thereby, and (iii) the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
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(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register, and
neither the Trustee, the Securities Administrator, the Depositor, the Master
Servicer nor any successor to any such parties shall be affected by any notice
to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Regular Certificate shall bind every future
holder of the same Regular Certificate and the holder of every Regular
Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Trustee, the Securities Administrator, the Depositor,
the Master Servicer or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(c) and except that, in determining whether the
Securities Administrator or the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Certificates which have been pledged in good faith to
the Trustee, the Securities Administrator, the Depositor, the Master Servicer or
any Affiliate thereof may be regarded as outstanding if the pledgor establishes
to the satisfaction of the Securities Administrator the pledgor's right to act
with respect to such Certificates and that the pledgor is not an Affiliate of
the Trustee, the Securities Administrator, the Depositor, or the Master
Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice
President-Servicing, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Trustee, at its Corporate Trust Office, or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the Master Servicer or Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A.,
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Service Manager MANA
Series 2007-A3, or, in the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Client Service Manager MANA
Series 2007-A3, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may
hereafter be furnished to the other
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parties hereto in writing; (iv) in the case of the Custodian, (A) ▇▇▇▇▇ Fargo
Bank, N.A., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 0031, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: MANA Series 2007-A3, (B) Deutsche Bank National Trust Company, ▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Mortgage
Custody- ML072C; or such other address as may hereafter be furnished to the
other parties hereto in writing; (v) in the case of the Rating Agencies, ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or (vi) in the case of the Cap Contract
Counterparty, The Royal Bank of Scotland plc, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
Attention: Legal Department--Derivatives Documentation, telephone no. (203)
▇▇▇-▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Greenwich Capital
Markets, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Legal Department - Derivatives Documentation. Any notice delivered to the
Depositor, the Trustee, the Securities Administrator or the Master Servicer
under this Agreement shall be effective only upon receipt. Any notice required
or permitted to be mailed to a Certificateholder, unless otherwise provided
herein, shall be given by first-class mail, postage prepaid, at the address of
such Certificateholder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The Trustee shall promptly provide
notice to each Rating Agency and the NIMs Insurer with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement or the Servicing
Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Trustee, the Master Servicer or
the Securities Administrator;
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4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
Section 11.13 Third Party Rights. (a) The Cap Contract Counterparty and
Swap Counterparty shall be deemed third party beneficiaries of this Agreement
regarding provisions related to payments owed to the Cap Contract Counterparty
or Swap Counterparty, respectively, so long as any of the Corridor Contracts,
the Cap Contract or the Swap Agreement, as applicable, remain in effect. The
Custodian shall be deemed a third party beneficiary of this Agreement regarding
provisions related to indemnifying the Custodian so long as the Custodian
remains custodian under the Custodial Agreement.
(b) The NIMs Insurer shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement.
Section 11.14 Additional Rights of the NIMs Insurer.
(a) Each party to this Agreement, any agent thereof and any successor
thereto shall furnish to the NIMs Insurer a copy of any notice, direction,
demand, opinion, schedule, list, certificate, report, statement, filing,
information, data or other communication provided by it or on its behalf to any
other Person pursuant to this Agreement at the same time, in the same form and
in the same manner as such communication is so provided and shall address or
cause such communication to be addressed to the NIMs Insurer in addition to any
other addressee thereof. With respect to the Master Servicer, the Securities
Administrator and the Trustee, such obligation shall be satisfied with the
provision of access to the NIMs Insurer to the Master Servicer's or the
Securities Administrator's website.
(b) Wherever in this Agreement there shall be a requirement that there be
no downgrade, reduction, withdrawal or qualification of or other effect on the
rating of any Class of Certificates by any Rating Agency as of any date, there
also shall be deemed to be a requirement that there be no such effect on any
class of notes issued pursuant to the Indenture and guaranteed by the NIMs
Insurer as of such date. In addition, unless there exists a continuance of any
failure by the NIMs Insurer to make a required payment under the policy insuring
the NIM Notes (such event, a "NIMs Insurer Default"), wherever in this Agreement
there shall be a requirement that any Person or any communication, object or
other matter be acceptable or satisfactory to or otherwise receive the consent
or other approval of any other Person (whether as a condition to the eligibility
of such Person to act in any capacity, as a condition to any circumstance or
state of affairs related to such matter, or otherwise), there also shall be
deemed to be a requirement that such Person or matter be approved in writing by
the NIMs Insurer, which approval shall not be unreasonably withheld or delayed.
ARTICLE XII
PROHIBITED TRANSACTIONS
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Section 12.01 [Reserved].
Section 12.02 Prohibited Transactions and Activities. Neither the Depositor
nor the Securities Administrator shall sell, dispose of, or substitute for any
of the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure
of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination
of each REMIC pursuant to Article X of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any REMIC,
nor sell or dispose of any investments in the Distribution Account for gain, nor
accept any contributions to any REMIC after the Closing Date, unless it has
received an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) affect adversely the status of any such REMIC as a
REMIC or of the interests therein other than the Residual Certificate as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any such REMIC to be subject to any tax including a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
Section 12.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status. In the event that a REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a result
of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Securities Administrator of
its duties and obligations set forth herein, the Securities Administrator shall
indemnify the Certificateholders of the related Residual Certificate against any
and all losses, claims, damages, liabilities or expenses ("Losses") resulting
from such negligence; provided, however, that the Securities Administrator shall
not be liable for any such Losses attributable to the action or inaction of the
Depositor or the Holder of the Residual Certificate, nor for any such Losses
resulting from misinformation provided by any of the foregoing parties on which
the Securities Administrator has relied. Notwithstanding the foregoing, however,
in no event shall the Trustee or the Securities Administrator have any liability
(1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or the Mortgage Loan Purchase Agreement, (2) for any
Losses other than arising out of malfeasance, willful misconduct or negligent
performance by the Securities Administrator with respect to its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders of the related Residual Certificate (in addition to
payment of principal and interest on the Certificates).
Section 12.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall not, except to the extent provided in this Agreement for
which the Securities Administrator is obligated to perform, knowingly permit any
Servicer to rent, lease, otherwise earn income or take any other action on
behalf of any REMIC with respect to any REO Property which might cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
"income from non-permitted assets" within the meaning of section 860F(a)(2) of
the Code or any "net income from foreclosure property" which is subject to tax
under the REMIC Provisions
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unless the Servicer has provided to the Securities Administrator an Opinion of
Counsel concluding that, under the REMIC Provisions, such action would not
adversely affect the status of any REMIC as a REMIC and any income generated for
any REMIC by the REO Property would not result in the imposition of a tax upon
such REMIC.
(b) The Depositor shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Depositor shall,
or shall cause the Servicer (to the extent provided in this Agreement) to,
dispose of any REO Property within three years of its acquisition by the Issuing
Entity unless the Depositor or such Servicer (on behalf of the Issuing Entity)
has received a grant of extension from the Internal Revenue Service to the
effect that, under the REMIC Provisions and any relevant proposed legislation
and under applicable state law, the REMIC may hold REO Property for a longer
period without adversely affecting the REMIC status of such REMIC or causing the
imposition of a Federal or state tax upon such REMIC. If such an extension has
been received, then the Depositor, acting on behalf of the Trustee hereunder,
shall, or shall cause the Servicer to, continue to attempt to sell the REO
Property for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If such an extension has not
been received and the Depositor or the Servicer, acting on behalf of the Issuing
Entity hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Issuing Entity or if such an extension, has been received and
the Depositor or the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended Period, the
Depositor shall cause the Servicer, before the end of the three year period or
the Extended Period, as applicable, to (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be.
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IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and the
Securities Administrator have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name: ▇▇▇▇ Park
Title: Authorized Signatory
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A AND CLASS M CERTIFICATES
[INTENTIONALLY OMITTED]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS B CERTIFICATES
[INTENTIONALLY OMITTED]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATE
[INTENTIONALLY OMITTED]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS P CERTIFICATE
[INTENTIONALLY OMITTED]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS C CERTIFICATE
[INTENTIONALLY OMITTED]
A-5-1
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
▇-▇-▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇▇]
▇-▇
▇▇▇▇▇▇▇ ▇
REQUEST FOR RELEASE OF DOCUMENTS
To: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ______________________
Re: Custodial Agreement, dated as of April 1 2007 among HSBC Bank USA,
National Association, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. and ▇▇▇▇▇
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
[ ] 1. Mortgage Paid in full
[ ] 2. Foreclosure
[ ] 3. Substitution
[ ] 4. Other Liquidation (Repurchases, etc.)
[ ] 5. Nonliquidation Reason: ________________________________
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
-------------------------------
Date:
--------------------------------
D-1
Custodian
▇▇▇▇▇ Fargo Bank, N.A.
Please acknowledge the execution of the above request by your
signature and date below:
Please acknowledge the execution of the above request by your
signature and date below:
------------------------------------- ----------------------------------------
Signature Date
Documents returned to Custodian:
------------------------------------- ----------------------------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER
[DATE]
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset
Trust, Series 2007-A3
Ladies and Gentlemen:
We propose to purchase ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust,
Series 2007-A3 Mortgage Pass-Through Certificates, Class R, described in the
Prospectus Supplement, dated April 26, 2007, and the Prospectus, dated March 22,
2007. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated April 1, 2007
relating to this issuance of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust,
Series 2007-A3 Mortgage Pass-Through Certificates (the "Pooling and servicing
Agreement").
1. We certify that (a) we are not a disqualified organization and (b)
we are not purchasing such Class R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they
became due, (b) we intend, and believe that we will be able, to continue to pay
our debts as they become due in the future, (c) we understand that, as
beneficial owner of the Class R Certificate, we may incur tax liabilities in
excess of any cash flows generated by the Class R Certificate, and (d) we intend
to pay any taxes associated with holding the Class R Certificate as they become
due and (e) we will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of ours or another U.S. taxpayer.
E-1-1
3. We acknowledge that we will be the beneficial owner of the Class R
Certificate and:(1)
__________ The Class R Certificate will be registered in our name.
__________ The Class R Certificate will be held in the name of our
nominee, _________________, which is not a disqualified
organization.
4. We certify that we are not an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Code or a plan subject to
federal, state, local, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code (each, a "Plan"), and are not directly
or indirectly acquiring the Class R Certificate on behalf of or with any assets
of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the
Class R Certificate in connection with the conduct of a trade or business within
the United States and have furnished the transferor and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code; for
this purpose the term "U.S. person" means a citizen or resident of the United
States, a corporation, or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of the source of its income, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more such U.S. persons have the authority
to control all substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons. We agree that any
breach by us of this certification shall render the transfer of any interest in
the Class R Certificate to us absolutely null and void and shall cause no rights
in the Class R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to
transfer any interest in the Class R Certificate, we will transfer such interest
in the Class R Certificate only (a) to a transferee that (i) is not a
disqualified organization and is not purchasing such interest in the Class R
Certificate on behalf of a disqualified organization, (ii) is a U.S. person or
will hold the Class R Certificate in connection with the conduct of a trade or
business within the United States and will furnish us and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code and
(iii) has delivered to the Securities Administrator a letter in the form of this
letter (including the affidavit appended hereto) and, we will provide the
Securities Administrator a written statement substantially in the form of
Exhibit E-2 to the Pooling and Servicing Agreement.
----------
(1) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-2
7. We hereby designate _______________________ as our fiduciary to act
as the tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement in which the Class R Certificate represents the residual
interest.
Very truly yours,
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of __________ __, 200__
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section 860E(e)(4) of the Internal
Revenue Code of 1986, as amended, and (ii) certain provisions of the
Pooling and Servicing Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the
"Investor"),
2. the Investor's Employer Identification number is __________,
3. the Investor is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
Mortgage Pass-Through Certificates, Class R Certificate on behalf
of a disqualified organization or any other entity,
4. unless ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. ("MLMI") has
consented to the transfer to the Investor, the Investor is a
"U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
6. the Investor has historically paid its debts as they became due,
7. the Investor intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
8. the Investor understands that, as beneficial owner of the Class R
Certificate, it may incur tax liabilities in excess of any cash
flows generated by the Class R Certificate,
9. the Investor intends to pay any taxes associated with holding the
Class R Certificate as they become due,
10. the Investor consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by MLMI (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class R Certificate will not be owned directly or
indirectly by a disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class R
Certificate to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of the
Investor, and as to each of the residual interests represented by
the Class R Certificate, the present value of the anticipated tax
liabilities associated with holding such residual interest does
not exceed the sum of:
E-1-4
A. the present value of any consideration given to the Investor
to acquire such residual interest;
B. the present value of the expected future distributions on
such residual interest; and
C. the present value of the anticipated tax savings associated
with holding such residual interest as the related REMIC
generates losses.
For purposes of this declaration, (i) the Investor is assumed to pay
tax at a rate equal to the highest rate of tax specified in Section
11(b)(1) of the Code, but the tax rate specified in Section
55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b)(1) of the Code if the Investor has been
subject to the alternative minimum tax under Section 55 of the Code in
the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, and (ii)
present values are computed using a discount rate equal to the Federal
short-term rate prescribed by Section 1274(d) of the Code for the
month of the transfer and the compounding period used by the
Investor;]
[(11)(A) at the time of the transfer, and at the close of each of the
Investor's two fiscal years preceding the Investor's fiscal year of
transfer, the Investor's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting
purposes exceed $10 million; and
(B) the Investor is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class R Certificate will be to another
eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Investor do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Investor to make this
declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
(12) The Investor will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Investor or another U.S.
taxpayer.
E-1-5
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
E-1-6
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its
_____________ this ___ day of ______________, 20__.
[INVESTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Personally appeared before me the above-named _______________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________________of the Investor, and acknowledged to me that
he executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of ______________, 20__.
NOTARY PUBLIC
----------------------------------------
COUNTY OF ______________________________
STATE OF _______________________________
My commission expires the _____ day of __________ 20__.
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
[DATE]
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset
Trust, Series 2007-A3
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true, and has no reason to believe that the
Transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Class R Certificate referred to in the attached affidavit. In addition, the
Transferor has conducted a reasonable investigation at the time of the transfer
and found that the Transferee had historically paid its debts as they came due
and found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
[Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 200___
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
Mortgage Pass-Through Certificates, Class [__]
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________ (the
"Purchaser") of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Class _____ (the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of April 1, 2007 among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as
depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), and HSBC Bank USA, National Association, as
trustee (the "Trustee"). The Seller hereby certifies, represents and warrants
to, and covenants with, the Depositor and the Securities Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The
F-1-1
Seller will not act in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
Mortgage Pass-Through Certificates, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) solely in the case of an ERISA
Restricted Certificate, we (i) are not an employee benefit plan or arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code") or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that are
substantively similar to foregoing provisions of ERISA or the Code ("Similar
Law") (collectively, a "Plan"), and are not directly or indirectly acquiring
this Certificate for, on behalf of or with any assets of any such Plan, (ii) if
the Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel
F-2-1
shall not be an expense of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below), (f)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we will
at our expense provide an opinion of counsel satisfactory to the addressees of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) The purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate, and (3) The purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement.
Very truly yours,
---------------------------------------
Print Name of Transferee
By:
-----------------------------------
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 2006
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
Mortgage Pass-Through Certificates, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) solely in the case of an ERISA Restricted
Certificate, we (i) are not an employee benefit plan or arrangement subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a plan subject to any provisions under any federal,
state, local, non-U.S. or other laws or regulations that are substantively
similar to foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and are not directly or indirectly acquiring this
Certificate for, on behalf of or with any assets of any such Plan, (ii) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator or the
F-3-1
Trustee, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Act ("Rule 144A") and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2, (g) we are
aware that the sale to us is being made in reliance on Rule 144A, and (h) we are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (B) pursuant to another
exemption from registration under the Act.
Very truly yours,
---------------------------------------
Print Name of Transferee
By:
-----------------------------------
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, The business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
F-3-3
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
F-3-4
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
---------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
---------------------------------
F-3-5
ANNEX II TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
F-3-6
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, The Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, The Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
---------------------------------------
Print Name of Buyer
Date:
---------------------------------
F-3-7
EXHIBIT G-1
FORM OF ▇▇▇▇▇ FARGO BANK, N.A. CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of April 1, 2007, by and among HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and
Servicing Agreement defined below, the "Trustee"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
INVESTORS, INC., as company (together with any successor in interest, the
"Company"), ▇▇▇▇▇ FARGO BANK, N.A., as securities administrator and master
servicer (together with any successor in interest or successor under the Pooling
and Servicing Agreement referred to below, the "Master Servicer") and ▇▇▇▇▇
FARGO BANK, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of April 1, 2007, relating to
the issuance of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
Mortgage Pass-Through Certificates, (as amended and supplemented from time to
time, the "Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company or the Master Servicer under the Pooling and Servicing
Agreement and the Servicers under their respective Servicing Agreements, all
upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Pooling and Servicing Agreement, unless
otherwise required by the context herein.
G-1-1
CUSTODY OF MORTGAGE DOCUMENTS
1. Custodian to Act as Agent: Acceptance of Mortgage Files, Attestations and
Assessments of Compliance.
a. The Custodian, as the duly appointed agent of the Trustee for
these purposes, acknowledges (subject to any exceptions noted in
the Initial Certification referred to in Section 2.3(a)) receipt
of the Mortgage Files relating to the Mortgage Loans identified
on the schedule attached hereto (the "Mortgage Files") and
declares that it holds and will hold such Mortgage Files as agent
for the Trustee, in trust, for the use and benefit of all present
and future Certificateholders.
b. On or before March 1st of each calendar year, beginning with
March 1, 2008, the Custodian shall, at its own expense, cause a
firm of independent public accountants (who may also render other
services to Custodian), that is a member of the American
Institute of Certified Public Accountants, to furnish to the
Company and the Master Servicer a report to the effect that such
firm attests to, and reports on, the assessment made by such
asserting party pursuant to Section 2.01(c) below, which report
shall be made in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board.
c. On or before March 1st of each calendar year, beginning with
March 1, 2008, the Custodian shall deliver to the Company and the
Master Servicer a report regarding its assessment of compliance
with the servicing criteria identified in Exhibit Three attached
hereto, as of and for the period ending the end of the fiscal
year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed
security transactions taken as a whole in which the Custodian is
performing any of the servicing criteria specified in Exhibit
Three and that are backed by the same asset type backing such
asset-backed securities. Each such report shall include (a) a
statement of the party's responsibility for assessing compliance
with the servicing criteria applicable to such party, (b) a
statement that such party used the criteria identified in Item
1122(d) of Regulation AB (Section 229.1122(d)) to assess the
compliance with the applicable servicing criteria, (c) disclosure
of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting
firm has issued an attestation report on such party's assessment
of compliance with the applicable servicing criteria, which
report shall be delivered by the Custodian as provided in this
Section 2.01(c). However, the Custodian's obligation to provide a
report on assessment of compliance or an attestation with respect
to itself and with respect to any Subcontractor shall be
suspended in any year in which the Issuing Entity's reporting
obligations under the Exchange Act are suspended.
d. The Custodian has not and shall not engage any Subcontractor
which is "participating in the servicing function" within the
meaning of Item 1122 of
G-1-2
Regulation AB, unless such Subcontractor agrees to provide in any
year in which a Form 10-K will be filed by the Trust., no later
than March 1st of such year, an assessment and a statement of
registered public accounting firm certifying its compliance with
the applicable servicing criteria in Item 1122(d) of Regulation
AB as of and for the period ending the end of the fiscal year
ending no later than December 31 of the year prior to the year of
delivery of the report. "Subcontractor" as used herein means any
vendor, subcontractor or other Person that is not responsible for
the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to the
Mortgage Loans under the direction or authority of the Custodian.
e. The Custodian agrees to indemnify the Company, the Master
Servicer, the Trust Fund and each of their respective directors,
officers, employees and agents and hold each of them harmless
from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon the engagement of
any Subcontractor in violation of Section 2.01(d) or any failure
by the Custodian to deliver any information, report,
certification, accountants' letter or other material when and as
required under this Agreement, including any report under
Sections 2.01(b) or 2.01(c).
2. Reserved.
3. Review of Mortgage Files.
a. On or prior to the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review, in accordance with the
provisions of Section 2.02 of the Pooling and Servicing
Agreement, each such document, and shall deliver to the Trustee
an Initial Certification in the form annexed hereto as Exhibit
One evidencing receipt (subject to any exceptions noted therein)
of a Mortgage File for each of the Mortgage Loans listed on the
Schedule attached hereto (the "Mortgage Loan Schedule") and
certifying that all such documents have been executed and
received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Initial
Certification. The Custodian shall be under no duty or obligation
to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose
or that they have actually been recorded or that they are other
than what they purport to be on their face.
b. Not later than 180 days after the Closing Date, the Custodian
shall review the Mortgage Files as provided in Section 2.02 of
the Pooling and Servicing Agreement and deliver to the Trustee a
Final Certification in the form annexed hereto as Exhibit Two
evidencing the completeness of the Mortgage Files (subject to any
exceptions noted therein).
G-1-3
c. In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no
representation as to and shall not be responsible to verify (i)
the validity, legality, enforceability, due authorization,
recordability, sufficiency or genuineness of any of the documents
included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the
documents in any Mortgage File.
d. Upon receipt of written request from the Trustee, the Custodian
shall as soon as practicable supply the Trustee with a list of
all of the documents relating to the Mortgage Loans then
contained in the Mortgage Files.
4. Notification of Breaches of Representations and Warranties. Upon discovery
by the Custodian of a breach of any representation or warranty made by the
Company as set forth in the Pooling and Servicing Agreement with respect to
a Mortgage Loan relating to a Mortgage File, the Custodian shall give
prompt written notice to the Company, the related Servicer and the Trustee.
5. Custodian to Cooperate: Release of Mortgage Files. Upon receipt of written
notice from the Master Servicer that the Mortgage Loan Seller has
repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the purchase price therefor has been
deposited in the Master Servicer Collection Account or the Distribution
Account, then the Custodian agrees to promptly release to the Mortgage Loan
Seller the related Mortgage File.
a. Upon the Custodian's receipt of a request for release (a "Request
for Release") substantially in the form of Exhibit D to the
Pooling and Servicing Agreement signed by a Servicing Officer of
the related Servicer stating that it has received payment in full
of a Mortgage Loan or that payment in full will be escrowed in a
manner customary for such purposes, the Custodian agrees
promptly, but no lesser than three (3) Business Days, to release
to such Servicer the related Mortgage File. The Company shall
deliver to the Custodian and the Custodian agrees to accept the
Mortgage Note and other documents constituting the Mortgage File
with respect to any Substitute Mortgage Loan.
b. From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose,
collection under any Primary Mortgage Insurance Policy, the
related Servicer shall deliver promptly to the Custodian a
Request for Release signed by a Servicing Officer requesting that
possession of all of the Mortgage File be released to such
Servicer and certifying as to the reason for such release and
that such release will not invalidate any insurance coverage
provided in respect of the Mortgage Loan under any of the
Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to such Servicer. The related
Servicer shall cause each Mortgage File or any document therein
so released to be returned to the Custodian when the need
therefore by such Servicer no longer exists, unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Master
Servicer Collection Account or the Distribution
G-1-4
Account or (ii) 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 related Servicer has delivered to the Custodian 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.
c. At any time that a Servicer is required to deliver to the
Custodian a Request for Release, such Servicer shall deliver two
copies of the Request for Release if delivered in hard copy or
such Servicer may furnish such Request for Release electronically
to the Custodian, in which event the Servicing Officer
transmitting the same shall be deemed to have signed the Request
for Release. In connection with any Request for Release of a
Mortgage File because of a repurchase of a Mortgage Loan, the
related Servicer shall send to the Trustee an assignment of
mortgage, without recourse, representation or warranty from the
Trustee to the Mortgage Loan Seller and the related Mortgage Note
which shall be endorsed without recourse, representation or
warranty by the Trustee and the Trustee shall forward such
documents to the Mortgage Loan Seller. In connection with any
Request for Release of a Mortgage File because of the payment in
full of a Mortgage Loan, the related Servicer shall send to the
Trustee a certificate of satisfaction or other similar instrument
to be executed by or on behalf of the Trustee and returned to
such Servicer.
6. Assumption Agreements. In the event that any assumption agreement or
substitution of liability agreement is entered into with respect to any
Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer, to
the extent provided in the related Servicing Agreement, shall cause the
related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian
the original of such assumption or substitution agreement, which shall be
added to the related Mortgage File and, for all purposes, shall be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting parts thereof.
CONCERNING THE CUSTODIAN
1. Custodian a Bailee and Agent of the Trustee. With respect to each Mortgage
Note, Mortgage and other documents constituting each Mortgage File which
are delivered to the Custodian, the Custodian is exclusively the bailee and
agent of the Trustee and has no instructions to hold any Mortgage Note or
Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. Except upon
compliance with the provisions of Section 2.5 of this Agreement, no
Mortgage Note, Mortgage or Mortgage File shall be delivered by the
Custodian to the Company, the Servicer or the Master Servicer or otherwise
released from the possession of the Custodian.
2. Reserved.
G-1-5
3. Custodian May Own Certificates. The Custodian in its individual or any
other capacity may become the owner or pledgee of Certificates with the
same rights it would have if it were not Custodian.
4. Master Servicer to Pay Custodian's Fees and Expenses. The Master Servicer
covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and
duties hereunder of the Custodian, and the Master Servicer will pay or
reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith or to the extent
that such cost or expense is indemnified by the Company pursuant to the
Pooling and Servicing Agreement.
5. Custodian May Resign; Trustee May Remove Custodian. The Custodian may
resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either
take custody of the Mortgage Files itself and give prompt notice thereof to
the Company, the Master Servicer and the Custodian, or promptly appoint a
successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
a. The Trustee may remove the Custodian at any time with the consent
of the Master Servicer. In such event, the Trustee shall appoint,
or petition a court of competent jurisdiction to appoint, a
successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by
federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.7 and shall be unaffiliated
with the Servicer or the Company.
b. Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this
Section 3.5 shall become effective upon acceptance of appointment
by the successor Custodian. The Trustee shall give prompt notice
to the Company and the Master Servicer of the appointment of any
successor Custodian. No successor Custodian shall be appointed by
the Trustee without the prior approval of the Company and the
Master Servicer.
6. Merger or Consolidation of Custodian. Any Person into which the Custodian
may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any
G-1-6
Person succeeding to the business of the Custodian, shall be the successor
of the Custodian hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
7. Representations of the Custodian. The Custodian hereby represents that it
is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which
it will hold any Mortgage File.
MISCELLANEOUS PROVISIONS
1. Notices. All notices, requests, consents, demands and other communications
required under this Agreement or pursuant to any other instrument or
document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex,
or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar
notice in writing), in which case the notice will be deemed delivered when
received.
2. Amendments. No modification or amendment of or supplement to this Agreement
shall be valid or effective unless the same is in writing and signed by all
parties hereto, and neither the Company, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the
Pooling and Servicing Agreement. The Trustee shall give prompt notice to
the Custodian of any amendment or supplement to the Pooling and Servicing
Agreement and furnish the Custodian with written copies thereof.
3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
4. Recordation of Agreement. To the extent permitted by applicable law, this
Agreement is subject to recordation in all appropriate public offices for
real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Company and at the
Trust's expense on direction by the Trustee, but only upon direction
accompanied by an Opinion of Counsel (which shall be at the expense of the
party requesting such recordation and in no event at the expense of the
Trustee) reasonably satisfactory to the Company to the effect that the
failure to effect such recordation is likely to materially and adversely
affect the interests of the Certificateholders.
a. For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be
G-1-7
an original, and such counterparts shall constitute but one and
the same instrument.
5. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the holders thereof.
6. Third-Party Beneficiary. The parties hereto agree that Wilshire Credit
Corporation shall receive the benefit of the provisions of this Agreement
as an intended third party beneficiary.
G-1-8
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: ▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇▇ FARGO BANK, N.A.,
as Custodian
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 0031
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: WILSHIRE CREDIT CORPORATION,
as Servicer
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-1-9
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________, 200__
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as depositor, ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer and securities administrator, and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-A3
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
▇▇▇▇▇ FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-1-10
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2006
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ____________________
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as depositor, ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-A3
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
G-1-11
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
G-1-12
EXHIBIT THREE
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by ▇▇▇▇▇ Fargo Bank
shall address, at a minimum, the criteria identified below
as "Applicable Servicing Criteria":
SERVICING CRITERIA
--------------------------------------------------------- APPLICABLE SERVICING
REFERENCE CRITERIA CRITERIA
----------------- ------------------------------------- --------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are
instituted to monitor any performance
or other triggers and events of
default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities
are outsourced to third parties,
policies and procedures are
instituted to monitor the third
party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction
agreements to maintain a back-up
servicer for the mortgage loans are
maintained.
1122(d)(1)(iv) A fidelity bond and errors and
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in
accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are
deposited into the appropriate
custodial bank accounts and related
bank clearing accounts no more than
two business days following receipt,
or such other number of days
specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer
on behalf of an obligor or to an
investor are made only by authorized
personnel.
1122(d)(2)(iii) Advances of funds or guarantees
regarding collections, cash flows or
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction
agreements.
1122(d)(2)(iv) The related accounts for the
transaction, such as cash reserve
accounts or accounts established as a
form of overcollateralization, are
separately maintained (e.g., with
respect to commingling of cash) as
set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained
at a federally insured depository
institution as set forth in the
transaction agreements. For purposes
of this criterion, "federally insured
depository institution" with respect
to a foreign financial institution
means a foreign financial institution
that meets the requirements of Rule
13k-1(b)(1) of the Securities
Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as
to prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A)
mathematically accurate; (B) prepared
within 30 calendar days after the
bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed
and approved by someone other than
the person who prepared the
reconciliation; and (D) contain
explanations for reconciling items.
These reconciling items are resolved
within 90 calendar days of their
original identification, or such
other number of days specified in the
transaction agreements.
G-1-13
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
----------------- -------------------------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements.
Specifically, such reports (A) are
prepared in accordance with
timeframes and other terms set forth
in the transaction agreements; (B)
provide information calculated in
accordance with the terms specified
in the transaction agreements; (C)
are filed with the Commission as
required by its rules and
regulations; and (D) agree with
investors' or the trustee's records
as to the total unpaid principal
balance and number of mortgage loans
serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are
allocated and remitted in accordance
with timeframes, distribution
priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are
posted within two business days to
the Servicer's investor records, or
such other number of days specified
in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage X
loans is maintained as required by
the transaction agreements or related
mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents X
are safeguarded as required by the
transaction agreements.
1122(d)(4)(iii) Any additions, removals or
substitutions to the asset pool are
made, reviewed and approved in
accordance with any conditions or
requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on mortgage loans, including
any payoffs, made in accordance with
the related mortgage loan documents
are posted to the Servicer's obligor
records maintained no more than two
business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated
to principal, interest or other items
(e.g., escrow) in accordance with the
related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the
mortgage loans agree with the
Servicer's records with respect to an
obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or
status of an obligor's mortgage loans
(e.g., loan modifications or
re-agings) are made, reviewed and
approved by authorized personnel in
accordance with the transaction
agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions
(e.g., forbearance plans,
modifications and deeds in lieu of
foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded in
accordance with the timeframes or
other requirements established by the
transaction agreements.
1122(d)(4)(viii) Records documenting collection
efforts are maintained during the
period a mortgage loan is delinquent
in accordance with the transaction
agreements. Such records are
maintained on at least a monthly
basis, or such other period specified
in the transaction agreements, and
describe the entity's activities in
monitoring delinquent mortgage loans
including, for example, phone calls,
letters and payment rescheduling
plans in cases where delinquency is
deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or
rates of return for mortgage loans
with variable rates are computed
based on the related mortgage loan
documents.
G-1-14
SERVICING CRITERIA
--------------------------------------------------------- APPLICABLE SERVICING
REFERENCE CRITERIA CRITERIA
----------------- ------------------------------------- --------------------
1122(d)(4)(x) Regarding any funds held in trust for
an obligor (such as escrow accounts):
(A) such funds are analyzed, in
accordance with the obligor's
mortgage loan documents, on at least
an annual basis, or such other period
specified in the transaction
agreements; (B) interest on such
funds is paid, or credited, to
obligors in accordance with
applicable mortgage loan documents
and state laws; and (C) such funds
are returned to the obligor within 30
calendar days of full repayment of
the related mortgage loans, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor
(such as tax or insurance payments)
are made on or before the related
penalty or expiration dates, as
indicated on the appropriate bills or
notices for such payments, provided
that such support has been received
by the servicer at least 30 calendar
days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in
connection with any payment to be
made on behalf of an obligor are paid
from the servicer's funds and not
charged to the obligor, unless the
late payment was due to the obligor's
error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an
obligor are posted within two
business days to the obligor's
records maintained by the servicer,
or such other number of days
specified in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and
uncollectible accounts are recognized
and recorded in accordance with the
transaction agreements.
1122(d)(4)(xv) Any external enhancement or other
support, identified in Item
1114(a)(1) through (3) or Item 1115
of Regulation AB, is maintained as
set forth in the transaction
agreements.
G-1-15
EXHIBIT G-2
FORM OF DEUSTCHE BANK NATIONAL TRUST COMPANY CUSTODIAL AGREEMENT
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian,
HSBC Bank USA, National Association
as Trustee
and
▇▇▇▇▇ Fargo Bank, N.A.
as Securities Administrator and Master Servicer
----------
CUSTODIAL AGREEMENT
Dated as of April 1, 2007
----------
G-2-1
TABLE OF CONTENTS
Page
----
Section 1. Definitions.................................................. 4
Section 2. Acceptance by Custodian of the Mortgage Files................ 5
Section 3. Obligations of the Custodian; Ownership of Mortgage Loan
Documents.................................................... 5
Section 4. Release of Mortgage Files.................................... 4
Section 5. Fees of Custodian............................................ 4
Section 6. Removal of Custodian With Respect to Some or All of the
Mortgage Loans............................................... 5
Section 7. Transfer of Mortgage Files Upon Termination.................. 5
Section 8. Examination of Mortgage Files................................ 5
Section 9. Insurance of Custodian....................................... 5
Section 10. Counterparts................................................. 6
Section 11. Periodic Statements.......................................... 6
Section 12. GOVERNING LAW................................................ 6
Section 13. Copies of Mortgage Documents................................. 6
Section 14. No Adverse Interest of Custodian............................. 6
Section 15. Resignation by Custodian..................................... 6
Section 16. Term of Agreement............................................ 7
Section 17. Notices...................................................... 7
Section 18. Successors and Assigns....................................... 8
Section 19. Limitation on Liability...................................... 8
Section 20. Custodian Obligations Regarding Genuineness of Documents..... 10
Section 21. Shipment of Documents........................................ 11
Section 22. Authorized Representatives................................... 11
Section 23. Amendments................................................... 11
Section 24. Third-Party Beneficiary...................................... 11
Section 25. Additional Information to Be Provided by the Custodian....... 12
G-2-2
EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B FORM OF INITIAL CERTIFICATION
EXHIBIT C FORM OF FINAL CERTIFICATION
EXHIBIT D AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT E AUTHORIZED REPRESENTATIVES OF THE TRUSTEE
EXHIBIT F AUTHORIZED REPRESENTATIVES OF THE SECURITIES ADMINISTRATOR
EXHIBIT G AUTHORIZED REPRESENTATIVES OF THE SERVICER
EXHIBIT H FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO
BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
EXHIBIT I FEE SCHEDULE
G-2-3
This is a Custodial Agreement (the "Agreement"), dated and effective
as of April 1, 2007, by and between Deutsche Bank National Trust Company, as
custodian (the "Custodian"), HSBC Bank USA, National Association, as trustee
(the "Trustee") and ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and securities
administrator (the "Securities Administrator");
WITNESSETH
WHEREAS, the Trustee has entered into a Pooling and Servicing
Agreement, dated as of April 1, 2007 (the "Pooling Agreement"), among ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Investors, Inc., as depositor (the "Depositor"), the Securities
Administrator, and the Trustee, as trustee, pursuant to which the Depositor has
conveyed certain Mortgage Loans identified on the Mortgage Loan Schedule
attached hereto as Exhibit A to the Trustee;
WHEREAS, the Trustee, the Securities Administrator and the Custodian
desire that the Custodian shall hold the Mortgage Files on behalf of the Trust
in accordance with the terms hereof, and that the Custodian shall cooperate with
the Trustee in the performance of the Trustee's duties under the Pooling
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Trustee, the Securities
Administrator and the Custodian agree as follows:
I. Definitions
All capitalized terms not defined herein shall have the meanings assigned
to such terms in the Pooling Agreement. The Trustee shall notify the Custodian,
in advance, of any material changes to such Pooling Agreement that may affect
the rights and obligations of the Custodian set forth herein and shall not enter
into any change that affects the rights or obligations of the Custodian without
the Custodian's consent. Whenever used herein, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Agreement: This Custodial Agreement and all amendments and attachments
hereto and supplements hereof.
Closing Date: April 30, 2007.
Commission: The United States Securities and Exchange Commission.
Custodian: Deutsche Bank National Trust Company, or any successor in
interest or assigns, or any successor to the Custodian under this Agreement as
herein provided.
Mortgage Loan Schedule: The portion of the "Mortgage Loan Schedule"
(as defined in the Pooling Agreement), as from time to time amended by the
Trustee to reflect the deletion of Deleted Mortgage Loans and the addition of
Replacement Mortgage Loans pursuant to the provisions of the Pooling Agreement,
transferred to the Trustee as part of the Trust Fund attached hereto as Exhibit
A.
G-2-4
Mortgage Loans: The mortgage loans set forth on the Mortgage Loan
Schedule attached hereto as Exhibit A.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 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.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing is commonly understood by
participants in the mortgage-backed securities market) of the Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Custodian.
II. Performance by Custodian of Certain Duties of Trustee.
In connection with the transfer and assignment of the Mortgage Loans to the
Trustee, the Depositor has delivered to, and deposited with, the Custodian the
documents listed in Section 2.01 of the Pooling Agreement.
The Custodian agrees, with respect to the Mortgage Loans, to perform the
duties of the Custodian set forth in Sections 2.01, 2.02 and 3.07 of the Pooling
Agreement,
Except as set forth in the Exception Report delivered contemporaneously
herewith (the "Exception Report"), the Custodian acknowledges receipt of the
Mortgage Note for each Mortgage Loan and delivery of a Mortgage File (but does
not acknowledge receipt of all documents required to be included in such
Mortgage File pending delivery of the Custodian's certification) with respect to
each Mortgage Loan and declares that it holds and will hold such documents and
any other documents constituting a part of the Mortgage Files delivered to it in
trust for the use and benefit of the Trustee and all present and future
Certificateholders.
The Custodian agrees to review each Mortgage File delivered to it and to
deliver such further custodial certifications with respect to the Mortgage
Loans, including the Initial Cetification and the Final Certification, attached
hereto as Exhibits B and C, respectively, as are required of the Trustee under
the Pooling Agreement.
Any and all reports, certifications or requests produced by the Custodian
shall also be addressed to the Trustee.
III. Obligations of the Custodian; Ownership of Mortgage Loan Documents.
(a) With respect to each Mortgage File that is delivered to the Custodian
or that comes into the possession of the Custodian pursuant to this Agreement,
the Custodian acknowledges and agrees that the Custodian is the custodian for
the Trustee exclusively and that the Trustee has the legal right, at any time
and in its absolute discretion, to direct, in writing, the Custodian to release
any Mortgage File or all Mortgage Files to the Trustee or the Trustee's
designee, as the
G-2-5
case may be, at such place or places as the Trustee may designate. The Custodian
shall hold each Mortgage File received by it for the exclusive use and benefit
of the Trustee, and shall make disposition thereof only upon written
instructions or certifications of a Servicing Officer or the written
instructions furnished by the Trustee. The Custodian shall segregate and
maintain continuous custody of all mortgage documents constituting the Mortgage
File in secure and fire resistant facilities in accordance with customary
standards (two-hour fire rated) for such custody. The Custodian shall not be
responsible to verify (i) the validity, legality, enforceability, recordability,
sufficiency, due authorization or genuineness of any document in the Mortgage
File or of any Mortgage Loans or (ii) the collectability, insurability,
effectiveness including the authority or capacity of any Person to execute or
issue any document in the Mortgage File, priority, perfection or suitability of
any Mortgage Loan unless specified otherwise in this Agreement. The Custodian
shall promptly report to the Trustee any failure on its part to hold the
Mortgage Files and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy such failure.
(b) [Reserved].
(c) On or before March 12th of each calendar year until such time as a
Form 15 suspension notification is filed after which the Custodian shall not be
required to deliver, beginning with March 12, 2008, the Custodian shall, at its
own expense, cause a firm of independent public accountants (who may also render
other services to Custodian), which is a member of the American Institute of
Certified Public Accountants, to furnish to the Sponsor, the Depositor, the
Securities Administrator and the Servicer (i) year-end audited (if available)
financial statements of the Custodian and (ii) a report to the effect that such
firm that attests to, and reports on, the assessment made by such asserting
party pursuant to Section 3(d) below, which report shall be made in accordance
with standards for attestation engagements issued or adopted by the Public
Company Accounting Oversight Board.
(d) On or before March 12th of each calendar year, beginning with
March 12, 2008, the Custodian shall deliver to the Sponsor, the Servicer, the
Securities Administrator and the Depositor, until such time as a Form 15
suspension notification is filed after which the Custodian shall not be required
to deliver, a report regarding its assessment of compliance with the servicing
criteria identified in Exhibit H attached hereto, as of and for the period
ending the end of the fiscal year ending no later than December 31 of the year
prior to the year of delivery of the report, with respect to asset-backed
security transactions taken as a whole in which the Custodian is performing any
of the servicing criteria specified in Exhibit H and that are backed by the same
asset type backing such asset-backed securities. Each such report shall include
(a) a statement of the party's responsibility for assessing compliance with the
servicing criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (Section
229.1122(d)) to assess the compliance with the applicable servicing criteria,
(c) disclosure of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting firm has issued
an attestation report on such party's assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Custodian
as provided in this Section 3(d).
(e) The Custodian has not and shall not engage any Subcontractor which
is "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB,
G-2-6
unless such Subcontractor provides, beginning March 1, 2008, a report or
assessment of compliance and a statement of registered public accounting firm
certifying its compliance with the applicable servicing criteria in Item 1122(d)
of Regulation AB.
IV. Release of Mortgage Files.
(a) Upon (i) becoming aware of the payment in full of any Mortgage Loan, or
(ii) the receipt by the Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes, the Servicer will promptly
notify the Custodian by a certification (which certification will include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the custodial account maintained by
the Servicer pursuant to the Pooling Agreement or related servicing agreement,
as applicable have been so deposited) of a Servicing Officer and shall request
the Custodian, on the request for release and receipt substantially in the form
of Exhibit I to the Pooling Agreement, to deliver to the Servicer the related
Mortgage File. Upon receipt of such certification and request, the Custodian
shall promptly release within four (4) Business Days the related Mortgage File
to the Servicer, and the Custodian shall have no further responsibility with
regard to such Mortgage File.
(b) The Custodian shall, upon request of the Servicer and delivery to the
Custodian of a request for release and receipt signed by a Servicing Officer
substantially in the form of Exhibit I to the Pooling Agreement, promptly
release within four (4) Business Days the related Mortgage File held in its
possession or control to the Servicer. Such request for release and receipt
shall obligate the Servicer to return the Mortgage File to the Custodian when
the need therefor by the Servicer no longer exists (but no later than the time
specified in Exhibit I to the Pooling Agreement) unless the Mortgage Loan shall
be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
retained by the Servicer.
V. Fees of Custodian.
The Custodian shall charge such fees for its services under this Agreement
as set forth in a separate fee schedule agreed between the Custodian and the
Securities Administrator, the payment of such fees, together with the
Custodian's expenses (as set forth in the fee schedule attached hereto as
Exhibit I) in connection herewith (other than counsel fees and expenses) shall
be solely the obligation of the Securities Administrator. The Custodian will be
reimbursed from the Trust Fund for any expenses owed to them to the extent
recoverable pursuant to the terms of the Pooling Agreement. In the event of any
default in the payment of such fees and expenses by the Securities
Administrator, the Custodian agrees that it will continue to act as Custodian
hereunder and perform its duties hereunder, and if after a 60-day period the
Securities Administrator has failed to pay the Custodian's fees, the Custodian
may seek repayment of such fees from the Securities Administrator who will pay
such fees from amounts on deposit in the Distribution Account prior to any
distributions to Certificateholders pursuant to the Pooling Agreement. The
obligation of the Securities Administrator to compensate and reimburse the
Custodian shall survive the termination of this Custodial Agreement and the
earlier removal or resignation of the Custodian.
G-2-7
VI. Removal of Custodian With Respect to Some or All of the Mortgage
Loans.
With reasonable cause and with the consent of the Securities Administrator,
the Trustee may, with 60 days' notice, remove and discharge the Custodian from
the performance of its duties under this Agreement with respect to any or all of
the Mortgage Loans by written notice from the Trustee to the Custodian, with a
copy to the Depositor, the Securities Administrator and the Servicer and
delivery of all outstanding final certifications. Having given notice of such
removal, the Trustee promptly shall, by written instrument, with a copy to the
Depositor and an original to the successor custodian or document custodian, (i)
appoint a successor custodian to act on behalf of the Trustee to replace the
Custodian under this Agreement, (ii) designate a document custodian to receive
the Mortgage Files with respect to the Mortgage Loans removed from this
Agreement, or (iii) take delivery of the Mortgage Files. The Trustee's
appointment of a successor custodian or document custodian shall be subject to
the consent of the Depositor and the Securities Administrator, which consent
shall not be unreasonably withheld, conditioned or delayed. In the event of any
such removal, the Custodian shall promptly transfer to the successor custodian,
as directed, all affected Mortgage Files. In the event of removal of the
Custodian for reasonable cause and the appointment of a successor custodian
under this Agreement, the expenses of transferring the Mortgage Files to the
successor custodian shall be at the expense of the Custodian. Notwithstanding
the foregoing, this Agreement shall remain in full force and effect with respect
to any Mortgage Loans for which this Agreement is not terminated hereunder.
VII. Transfer of Mortgage Files Upon Termination.
If the Custodian is notified by the Trustee that the Pooling Agreement has
been terminated, upon written request of the Trustee, the Custodian shall
release to such Persons as the Trustee shall designate, in writing, the Mortgage
Files relating to such Mortgage Loans as the Trustee shall request.
VIII. Examination of Mortgage Files.
Upon reasonable (but in no event less than two (2) Business Days) prior
notice to the Custodian, the Servicer, the Securities Administrator and the
Trustee and each of their respective agents, accountants, attorneys, auditors
and prospective purchasers will be permitted during the Custodian's normal
business hours to examine the Mortgage Files, documents, records and other
papers in the possession of or under the control of the Custodian relating to
any or all of the Mortgage Loans at the expense of the requesting party.
IX. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times during the
existence of this Agreement and keep in full force and effect fidelity
insurance, theft of documents insurance, errors and omissions insurance and
forgery insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as is customary for insurance typically
maintained by banks which act as custodian and in amounts and with insurance
companies reasonably acceptable to the Depositor. A certificate of the
respective insurer as to each such policy, with a copy of such policy attached,
shall be furnished to the Trustee, upon request, containing the statement of the
insurer or endorsement evidencing that such insurance shall not
G-2-8
terminate prior to receipt by the Trustee, by registered mail, of 30 days' prior
written notice thereof.
X. Counterparts.
For the purpose of facilitating the execution of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute one and the same instrument.
XI. Periodic Statements.
Upon the request of the Trustee, the Custodian shall provide to the Trustee
a list of all the Mortgage Loans for which the Custodian holds a Mortgage File
pursuant to this Agreement. Such list may be in the form of a copy of the
Mortgage Loan Schedule with manual additions and deletions to specifically
denote any Mortgage Loans substituted, paid off or repurchased since the date of
this Agreement.
XII. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
XIII. Copies of Mortgage Documents.
Upon the request of the Servicer, the Securities Administrator or the
Trustee and at the expense of the Custodian, such expense which may be
reimbursed by the Securities Administrator from the Distribution Account prior
to distribution to Certificateholders, the Custodian shall provide, within four
(4) Business Days, the requestor with copies of the Mortgage Notes, Mortgages,
Assignments of Mortgages and other documents relating to any or all of the
Mortgage Loans held by the Custodian.
XIV. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and warrants that
it currently holds, and during the existence of this Agreement shall hold, no
adverse interest, by way of security or otherwise, in any Mortgage Loan, and
hereby waives and releases any such interest which it may have in any Mortgage
Loan as of the date hereof.
XV. Resignation by Custodian.
The Custodian may resign as custodian under this Agreement upon at least 60
days' prior written notice to the Depositor, the Servicer, the Securities
Administrator and the Trustee. If the Custodian resigns without reasonable
cause, the costs associated with the resignation of the
G-2-9
Custodian, including all costs associated with the transfer of the Mortgage
Files, shall be borne by the Custodian; otherwise all such costs shall be borne
by the Trust Fund unless the reason for such resignation is caused by the
Trustee, in which case the Trustee shall pay. The parties agree that non-payment
of Custodian's fees and expenses shall constitute reasonable cause for
resignation. In the event of such resignation, the Trustee shall promptly
appoint a successor custodian to serve as Custodian hereunder. Upon such
appointment the Custodian shall promptly transfer to the successor custodian, as
directed, all Mortgage Files being administered under this Agreement. If no
successor is so appointed and approved by the end of such 60-day period, the
Custodian shall deliver all Mortgage Files to the Trustee. The Securities
Administrator shall be responsible for the payment or reimbursement of such
successor custodian's reasonable fees and expenses in connection with the
performance of such successor custodian's obligations under this Agreement as
provided in Section 5 above.
XVI. Term of Agreement.
Unless terminated pursuant to Section 6 or Section 15 hereof, this
Agreement shall terminate upon the final payment or other liquidation (or
advance with respect thereto) of the last Mortgage Loan or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan, and the final remittance of all funds due the Trustee under the
Pooling Agreement, as evidenced by written notices of the Trustee. In such
event, all documents remaining in the Mortgage Files shall be released in
accordance with the written instructions of the Trustee.
XVII. Notices.
Any demand, notice, consents, reports, statements or any other
communication hereunder shall be deemed to have been received on the date
delivered to or received by the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt). All
demands, notices, consents, reports, statements and any other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or, if by
other means, when received by the recipient party at the address shown below, or
at such other addresses as may hereafter be furnished to the other parties by
like notice:
(i) if to the Custodian:
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mortgage Custody - ML072C
or such other address as may hereafter be furnished to the Trustee in
writing by the Custodian;
(ii) if to the Trustee:
HSBC Bank USA, National Association
Attn: CTLA - MANA 2007-A3
G-2-10
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 212.525.1300
with a copy to the Depositor:
c/o Merrill ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Servicer:
Wilshire Credit Corporation
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
XVIII. Successors and Assigns.
This Agreement shall inure to the benefit of the successors and assigns of
the parties hereto, subject to the limitations herein provided. The Trustee
shall have the right, subject to the terms of the Pooling Agreement, without the
consent of the Custodian or the Depositor (but with notice in writing to the
Custodian), to assign, in whole or in part, its interest under this Agreement
with respect to the Mortgage Loans to one or more parties including the
Depositor and affiliates thereof, each of which in turn may assign, its interest
under this Agreement with respect to the Mortgage Loans to one or more parties,
and such parties shall succeed to the rights of the Trustee under this Agreement
with respect to the applicable Mortgage Loans. All references to the Trustee in
this Agreement shall be deemed to include its assignee or designee and any
subsequent assignee, specifically including the Depositor. The Custodian shall
have the right to assign, in whole or in part, its interest under this Agreement
only with the prior written consent of the Trustee, the Securities Administrator
and the Depositor or in accordance with Section 15, provided, any entity into
which the Custodian may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any entity succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
XIX. Limitation on Liability.
(a) Neither the Custodian nor any of its directors, officers, agents or
employees, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith in good faith and believed (which
belief may be based upon the opinion or advice of counsel selected by it in the
exercise of reasonable care) by it or them to be within the purview of
G-2-11
this Agreement, except for its or their own negligence, bad faith or willful
misconduct. The Custodian and any director, officer, employee or agent of the
Custodian may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. In no event shall the Custodian or its directors, officers, agents
and employees be held liable for any special, indirect, incidental, punitive or
consequential damages resulting from any action taken or omitted to be taken by
it or them hereunder or in connection herewith even if advised of the
possibility of such damages. The provisions of this Subsection 19(a) shall
survive the termination of this Custodial Agreement.
(b) Subject to Subsection 19(a) hereof, the Custodian agrees to
indemnify the Trust Fund, the Trustee, the Securities Administrator and the
Servicer and each of their respective officers and directors for any claims,
liabilities, obligations, losses, damages, payments, costs or expenses that may
be imposed on, incurred by or asserted against the Trust Fund, the Trustee, the
Securities Administrator or the Servicer, directly related to any act or
omission by the Custodian with respect to the Mortgage Files which constitutes
negligence, bad faith or willful misconduct on the part of the Custodian;
provided, however, that the Custodian shall not be liable to any of the
foregoing Persons for any amount and any portion of any such amount resulting
from the willful misconduct, bad faith or negligence of such Person. The
provisions of this Subsection 19(b) shall survive the termination of this
Custodial Agreement.
(c) The Custodian agrees to indemnify the Depositor, the Trustee, the
Securities Administrator, the Servicer, the Trust Fund and each of their
respective directors, officers, employees and agents and hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain arising out of or based upon the
engagement of any Subcontractor in violation of Section 3(e).
(d) [The Custodian shall indemnify the Depositor, each affiliate of
the Depositor, the Securities Administrator and each broker dealer acting as
underwriter, placement agent or initial purchaser of the Certificates or each
Person who controls any of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective
directors, officers, and employees of each of the foregoing (each, an
"Indemnified Party"), and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain directly relating to:]
(i) [(A) any untrue statement of a material fact contained or alleged to be
contained in any information, report, certification, accountants' attestation or
other material provided under Section 3(c), 3(d) or Section 25 by or on behalf
of the Custodian (collectively, the "Custodian Information"), or (B) the
omission or alleged omission to state in the Custodian Information a material
fact required to be stated in the Custodian Information or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or]
(ii) any failure by the Custodian to deliver any information, report,
certification, accountants' attestation or other material when and as required
under Section 3(c), 3(d) [or Section 25; or]
G-2-12
(iii) the negligence, bad faith or willful misconduct of the Custodian in
the performance of its obligations under [Section 3(c), 3(d) or Section 25].
[In the case of any failure of performance described in clause (ii) above,
the Custodian shall promptly reimburse the Depositor, and the Securities
Administrator for all costs reasonably incurred by any of such Persons in order
to obtain the information, report, certification, accountants' letter or other
material not delivered as required by the Custodian.]
In no event shall the Custodian or its directors, officers, and employees
be liable for any special, indirect or consequential damages from any action
taken or omitted to be taken by it or them hereunder or in connection herewith
even if advised of the possibility of such damages.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless any Indemnified Party, then the Custodian agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Custodian on the other. This
indemnification shall survive the termination of this Agreement or the
termination of the Custodian.
(e) The Custodian and its directors, officers, employees and agents shall
be entitled to indemnification and defense from the Trust Fund for any losses,
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
disbursements or expenses of any kind or nature whatsoever, including, without
limitation reasonable attorney's fees and expenses, that may be imposed,
incurred by, or asserted against the Custodian without negligence, willful
misconduct, bad faith on their part, arising out of, or in connection with, the
acceptance or administration of the custodial arrangement created hereunder or
any related documents, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder. The provisions of this Subsection 19(e)
shall survive the termination of this Custodial Agreement and the earlier
removal or resignation of the Custodian.
(f) In order to comply with its duties under the U.S.A. Patriot Act,
the Custodian may obtain and verify certain information and documentation from
the other parties to this Agreement, including, but not limited to, such
parties' name, address and other identifying information.
XX. Custodian Obligations Regarding Genuineness of Documents.
In the absence of bad faith on the part of the Custodian, the Custodian may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any request, instructions, certificate, opinion
or other document furnished to the Custodian, reasonably believed by the
Custodian to be genuine and to have been signed or presented by the proper party
or parties and conforming to the requirements of this Agreement; provided that
the provisions of this Section shall not in any manner limit or reduce the
responsibilities of the Custodian under Section 3.
G-2-13
XXI. Shipment of Documents.
Written instructions as to the method of shipment and the shipper(s) that
the Custodian is directed to utilize in connection with transmission of Mortgage
Loan Documents in the performance of the Custodian's duties hereunder shall be
delivered by the Sponsor to the Custodian prior to any shipment of any Mortgage
Files hereunder. The Sponsor will arrange for the provision of such services at
its sole cost and expense (or, at the Custodian's option, reimburse the
Custodian for all costs and expenses incurred by the Custodian consistent with
such instructions) and will maintain such insurance against loss or damage to
Mortgage Files and Mortgage Loan Documents as it deems appropriate. Without
limiting the generality of the provisions of Section 20 above, it is expressly
agreed that in no event shall the Custodian have any liability for any losses or
damages to any person or property, arising out of actions of the Custodian
properly taken pursuant to instructions of the Trustee.
XXII. Authorized Representatives.
Each individual designated as an authorized representative of the
Custodian, the Trustee, the Securities Administrator or the Servicer (an
"Authorized Representative") is authorized to give and receive notices, requests
and instructions and to deliver certificates and documents in connection with
this Custodial Agreement on behalf of the Custodian, the Trustee, the Securities
Administrator and the Servicer, respectively, and the specimen signature for
each such Authorized Representative of the Custodian, the Trustee, the
Securities Administrator and the Servicer initially authorized hereunder is set
forth on Exhibits D, E, F and G respectively. From time to time, the Custodian,
the Trustee, the Securities Administrator or the Servicer may, by delivering to
the others a revised exhibit, change the information previously given pursuant
to this Section, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding exhibit.
XXIII. Amendments.
This Agreement may be amended or modified from time to time by the Trustee,
the Securities Administrator and the Custodian in writing, with prior written
notice by the Trustee to the Servicer and the Depositor. In the event of an
amendment to the Pooling Agreement, the Trustee shall provide a copy of such
amendment to the Custodian. No amendments or modifications to the Pooling
Agreement that have an impact on this Agreement shall be effective unless agreed
to in writing by the Custodian.
Section 24. Third-Party Beneficiary.
The parties hereto agree that the Sponsor, the Depositor, the Servicer and
the Trust Fund shall reserve the benefit of the provisions of this Agreement as
an intended third party beneficiary.
Section 25. Additional Information to Be Provided by the Custodian.
G-2-14
[For so long as the Depositor has a reporting obligation under the Exchange
Act with respect to any class of Certificates, the Custodian shall (a) notify
the Depositor and the Securities Administrator in writing of (i) any litigation
or governmental proceedings pending against the Custodian (including any such
proceedings known to be contemplated by governmental authorities) that would be
material to Certificateholders, and (ii) upon the request of the Depositor or
the Securities Administrator, any affiliations, relationships or transactions
relating to the Custodian with respect to the Depositor or other transaction
parties identified to the Custodian in such request and (b) provide to the
Depositor and the Securities Administrator a written description of any such
proceedings, affiliations, relationships or transactions. Any notices and
descriptions required under this Section 25 shall be given (i) within five
calendar days after the next succeeding Distribution Date, following the
Custodian's knowledge of the occurrence of the relevant event, with respect to
any Regulation AB Item 1117 material litigation or governmental proceedings
required to be included on Form 10-D or (ii) no later than March 15 with respect
to any material litigation or governmental proceedings pursuant to Regulation AB
item 1117 or affiliations pursuant to Regulation AB item 1119(a) (all with
respect to the prior fiscal year of the Issuing Entity) required to be included
on Form 10-K.. As of the date the Depositor or Securities Administrator files
each Report on Form 10-D or Form 10-K with respect to the Certificates, the
Custodian will be deemed to represent that any information previously provided
under this Section 25, if any, is materially correct and does not have any
material omissions unless the Custodian has provided an update to such
information.]
G-2-15
IN WITNESS WHEREOF, the Custodian, the Securities Administrator and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-2-16
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
G-2-17
EXHIBIT B
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________, 200__
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as depositor, ▇▇▇▇▇ Fargo
Bank, N.A. as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-A3
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-2-18
EXHIBIT C
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 200__
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as depositor, ▇▇▇▇▇ Fargo
Bank, N.A. as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-A3
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
G-2-19
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By:
------------------------------------
Name:
Title:
G-2-20
EXHIBIT D
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
Name Signature Title
---- --------- -----
G-2-21
EXHIBIT E
AUTHORIZED REPRESENTATIVES OF THE TRUSTEE
Name Signature Title
---- --------- -----
G-2-22
EXHIBIT F
AUTHORIZED REPRESENTATIVES OF THE SECURITIES ADMINISTRATOR
Name Signature Title
---- --------- -----
G-2-23
EXHIBIT G
AUTHORIZED REPRESENTATIVES OF THE SERVICER
Name Signature Title
---- --------- -----
G-2-24
EXHIBIT H
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by Deutsche Bank National Trust
Company shall address, at a minimum, the criteria identified below as
"Applicable Servicing Criteria":
SERVICING CRITERIA
--------------------------------------------------------- APPLICABLE SERVICING
REFERENCE CRITERIA CRITERIA
----------------- ------------------------------------- --------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the mortgage
loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into
the appropriate custodial bank accounts and
related bank clearing accounts no more than two
business days following receipt, or such other
number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts established
as a form of overcollateralization, are
separately maintained (e.g., with respect to
commingling of cash) as set forth in
the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than
the person who prepared the reconciliation; and
(D) contain explanations for reconciling items.
These reconciling items are resolved within 90
calendar days of their original identification,
or such other number of days specified in the
transaction agreements.
G-2-25
SERVICING CRITERIA
--------------------------------------------------------- APPLICABLE SERVICING
REFERENCE CRITERIA CRITERIA
----------------- ------------------------------------- --------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide
information calculated in accordance with the
terms specified in the transaction agreements;
(C) are filed with the Commission as required by
its rules and regulations; and (D) agree with
investors' or the trustee's records as to the
total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is X
maintained as required by the transaction
agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are X
safeguarded as required by the transaction
agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements
in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent mortgage loans including, for
example, phone calls, letters and payment
rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for mortgage loans with variable rates are
computed based on the related mortgage loan
documents.
G-2-26
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in
accordance with applicable mortgage loan
documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans,
or such other number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices
for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the servicer's funds and not
charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
G-2-27
EXHIBIT I
FEE SCHEDULE
G-2-28
EXHIBIT H-1
CLASS A-1 ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 04/30/07 05/25/07 189,695,000 7.822 10.790
2 05/25/07 06/25/07 183,756,135 6.452 10.790
3 06/25/07 07/25/07 177,988,621 6.674 10.790
4 07/25/07 08/25/07 172,390,834 6.452 10.790
5 08/25/07 09/25/07 166,957,785 6.452 10.790
6 09/25/07 10/25/07 161,684,630 6.674 10.790
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 10.790%)
exceeds the Lower Collar, the Issuing Entity will receive payments pursuant
to the Class A-1 Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
CLASS A-2 ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 04/30/07 05/25/07 269,066,000 7.576 10.260
2 05/25/07 06/25/07 260,654,390 6.601 10.260
3 06/25/07 07/25/07 252,485,191 6.829 10.260
4 07/25/07 08/25/07 244,556,121 6.601 10.260
5 08/25/07 09/25/07 236,860,124 6.601 10.260
6 09/25/07 10/25/07 229,390,356 6.830 10.260
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 10.260%)
exceeds the Lower Collar, the Issuing Entity will receive payments pursuant
to the Class A-2 Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇▇▇▇ CERTIFICATES ONE-MONTH LIBOR CORRIDOR TABLE (1)
BEGINNING ENDING NOTIONAL 1ML STRIKE 1ML STRIKE
PERIOD ACCRUAL ACCRUAL (2) BALANCE ($) LOWER COLLAR (%) UPPER COLLAR (%)
------ --------- ----------- ----------- ---------------- ----------------
1 04/30/07 05/25/07 25,113,000 7.095 8.690
2 05/25/07 06/25/07 25,113,000 5.957 8.690
3 06/25/07 07/25/07 25,113,000 6.183 8.690
4 07/25/07 08/25/07 25,113,000 5.957 8.690
5 08/25/07 09/25/07 25,113,000 5.957 8.690
6 09/25/07 10/25/07 25,113,000 6.183 8.690
(1) With respect to any Distribution Date, if One-Month LIBOR (as determined by
the Cap Contract Counterparty and subject to a cap equal to 8.690%) exceeds
the Lower Collar, the Issuing Entity will receive payments pursuant to the
Subordinate Certificates Corridor Contract.
(2) The accrual period is the period from and including the date in the column
headed "Beginning Accrual" to, but excluding, the date in the column headed
"Ending Accrual."
H-3-1
EXHIBIT I-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
CITIMORTGAGE, INC.
[INTENTIONALLY OMITTED]
I-1-1
EXHIBIT I-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
GREENPOINT MORTGAGE FUNDING, INC.
SEE EXHIBITS 99.2 THROUGH 99.4
I-2-1
EXHIBIT I-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
PHH MORTGAGE CORPORATION
[INTENTIONALLY OMITTED]
I-3-1
EXHIBIT I-4
FORM OF RECONSTITUTED SERVICING AGREEMENT
WILSHIRE CREDIT CORPORATION
SEE EXHIBIT 99.5
I-4-1
EXHIBIT J-1
MORTGAGE LOAN PURCHASE AGREEMENT
SEE EXHIBIT 99.1
J-1
EXHIBIT K
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS UNLESS OTHERWISE NOTED)
KEY: X - obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN ITS MANAGEMENT ASSERTION THAT IT IS ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN IT IS RESPONSIBLE FOR IN THE RELATED TRANSACTION AGREEMENTS.
CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS
ASSIGNED TO THEM IN THE POOLING AND SERVICING AGREEMENT, DATED AS OF APRIL 1,
2007, AMONG ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC., AS DEPOSITOR, ▇▇▇▇▇ FARGO
BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, AND HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE.
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------------------------ ------------------------ ---------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X X
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third X X
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A N/A
back-up servicer for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in X accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate X X
custodial bank accounts and related bank clearing accounts
no more than two business days following receipt, or such
other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor X X
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash X
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash X X
reserve accounts or accounts established as a form of over
collateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
K-1
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------------------------ ------------------------ ---------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured X X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the X X
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated
in accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by
its rules and regulations; and (D) agree with investors' or
the trustee's records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X X
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two X X
business days to the Servicer's investor records, or such
other number of days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree X X
with cancelled checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is maintained as
required by the transaction agreements or related pool asset
documents.
1122(d)(4)(ii) Pool assets and related documents are safeguarded as
required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
K-2
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------------------------ ------------------------ ---------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are posted
to the Servicer's obligor records maintained no more than
two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related pool asset documents.
1122(d)(4)(v) The Servicer's records regarding the pool assets agree with
the Servicer's records with respect to an obligor's unpaid
principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
pool assets (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during
the period a pool asset is delinquent in accordance with the
transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool
assets with variable rates are computed based on the related
pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's pool asset documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable pool
asset documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days of full
repayment of the related pool assets, or such other number
of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such
support has been received by the servicer at least 30
calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the Servicer's
funds and not charged to the obligor, unless the late
payment was due to the obligor's error or omission.
K-3
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------------------------ ------------------------ ---------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
K-4
EXHIBIT L
FORM OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
[DATE]
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial Center, 10th Floor
New York, New York 10080
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3 (the
"Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as
a whole, do not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
L-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:
-------------------------------
----------------------------------------
[Signature]
----------------------------------------
[Title]
L-2
EXHIBIT M
FORM OF BACK-UP ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial Center, 10th Floor
New York, New York 10080
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
[_______], the [_______] of [_______] (the "Company") hereby certifies
to the Depositor, the Master Servicer and the Securities Administrator, and each
of their officers, directors and affiliates that:
(1) I have reviewed [the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"),] the report on assessment of the Company's compliance with the
Servicing Criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to any of the Depositor, the
Master Servicer and the Trustee pursuant to the Agreement (collectively, the
"Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by
[_______] as [_______] under the [_______] (the "Agreement"), and based on my
knowledge [and the compliance review conducted in preparing the Compliance
Statement] and except as disclosed in [the Compliance Statement,] the Servicing
Assessment or the Attestation Report, the Company has fulfilled its obligations
under the Agreement in all material respects; and
M-1
(5) [The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and] [The] [the] Servicing Assessment and Attestation
Report required to be provided by the Company and [by any Subservicer or
Subcontractor] pursuant to the Agreement, have been provided to the Depositor,
the Master Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated as of April 1,
2007, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., as depositor (the
"Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator") and HSBC Bank USA, National Association, as trustee
(the "Trustee").
[_______]
as [_______]
By:
------------------------------------
Name:
Title:
Date:
M-2
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT N-1
FORM OF CLASS A-1 CORRIDOR CONTRACT
Date: April 30, 2007
To: ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES
ADMINISTRATOR") for the Issuing Entity with respect to
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series
2007-A3
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Client Manager - MANA 2007-A3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 3UR
Attn: Swaps Administration
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Copy To: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department - Derivatives Documentation
Tel.: ▇▇▇-▇▇▇-▇▇▇▇/32
Fax: ▇▇▇-▇▇▇-▇▇▇▇/34
Our Reference No.: IRG16267580.2A/2B
Re: Interest Rate Corridor Transaction
Ladies and Gentlemen:
N-1-1
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the
Definitions or the Agreement to a "Swap Transaction" shall be deemed to be
references to this Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of April 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the lesser of (i)
the amount set forth on Schedule A attached hereto and
(ii) the aggregate Certificate Balance of the Class A-1
Certificates and the Class R Certificates (together, the
"Certificates") as of the first day of such Calculation
Period (the "Relevant Balance").
The Securities Administrator shall make available each
month on its website a statement containing the Relevant
Balance at least five (5) Business Days prior to the
related Floating Rate Payer Payment Date, and Party A
shall be entitled to rely conclusively upon such
statement. The Securities Administrator's internet
website is located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and
assistance in using the website can be obtained by
calling ▇▇▇-▇▇▇-▇▇▇▇.
Any payment by Party A to Party B in excess of the amount
due under this Transaction on any Floating Rate Payer
Payment Date (as a result of the Notional Amount for the
related Calculation Period being other than the amount
set forth in Schedule A
N-1-2
hereto for such Calculation Period) shall be returned by
Party B to Party A as soon as Party B becomes aware of
such overpayment. Other than the return of such
overpayment, neither Party B nor Party A shall incur any
penalty or liability hereunder with respect to such
overpayment.
Trade Date: April 26, 2007
Effective Date: April 30, 2007
Termination Date: October 25, 2007, subject to adjustment in accordance
with the Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: April 30, 2007
Fixed Amount: [______]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End Date the percentage
set forth in Schedule A as the Cap Rate for such Floating
Rate Payer Period End Date.
Floating Rate Payer Period End Dates: The 25th day of each month, commencing May 25, 2007,
through and including the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
Floating Rate Payer Payment Dates: Early Payment shall be applicable. The Floating Rate
Payer Payment Dates shall be one (1) Business Day prior
N-1-3
to each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if the Floating
Rate Option for any Calculation Period is greater than
10.790%, then the Floating Rate Option for such
Calculation Period shall be deemed to be 10.790%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT ▇▇▇▇▇▇▇▇▇▇▇
with JPMorgan Chase Bank, New York ▇▇▇▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Account Number 400930153
Account Details for Party B:
▇-▇-▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
ABA#: ▇▇▇-▇▇▇-▇▇▇
Account#: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
FFC#: 53138702; Corridor Contract Account
Ref: MANA 2007-A3
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by ▇▇▇▇▇ Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of ▇▇▇▇▇ Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall ▇▇▇▇▇ Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
N-1-5
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-1-6
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ / 6486 Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC ▇▇▇▇▇ FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE ▇▇▇▇▇▇▇ ▇▇▇▇▇
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A3
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-1-7
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD): Cap Rate:
------------------- ----------------- ---------------------- ---------
04/30/07 05/25/07 189,695,000 7.822
05/25/07 06/25/07 183,756,135 6.452
06/25/07 07/25/07 177,988,621 6.674
07/25/07 08/25/07 172,390,834 6.452
08/25/07 09/25/07 166,957,785 6.452
09/25/07 10/25/07 161,684,630 6.674
N-1-8
(RBS LOGO)
The Royal Bank of Scotland
FORM N-2
FORM OF CLASS A-2 CORRIDOR CONTRACT
Date: April 30, 2007
To: ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES ADMINISTRATOR")
for the Issuing Entity with respect to the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Alternative Note Asset Trust, Series 2007-A3
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Client Manager - MANA 2007-A3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 3UR
Attn: Swaps Administration
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Copy To: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department - Derivatives Documentation
Tel.: ▇▇▇-▇▇▇-▇▇▇▇/32
Fax: ▇▇▇-▇▇▇-▇▇▇▇/34
Our Reference No.: IRG16267583.2A/2B
Re: Interest Rate Corridor Transaction
Ladies and Gentlemen:
N-2-1
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the
Definitions or the Agreement to a "Swap Transaction" shall be deemed to be
references to this Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of April 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation
Period, the lesser of (i) the
amount set forth on Schedule A
attached hereto and (ii) the
aggregate Certificate Balance of
the Class A-2A Certificates and
the Class A-2B Certificates
(together, the "Certificates") as
of the first day of such
Calculation Period (the "Relevant
Balance").
The Securities Administrator shall
make available each month on its
website a statement containing the
Relevant Balance at least five (5)
Business Days prior to the related
Floating Rate Payer Payment Date,
and Party A shall be entitled to
rely conclusively upon such
statement. The Securities
Administrator's internet website
is located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and
assistance in using the website
can be obtained by calling
▇▇▇-▇▇▇-▇▇▇▇.
Any payment by Party A to Party B
in excess of the amount due under
this Transaction on any Floating
Rate Payer Payment Date (as a
result of the Notional Amount for
the related Calculation Period
N-2-2
being other than the amount set
forth in Schedule A hereto for
such Calculation Period) shall be
returned by Party B to Party A as
soon as Party B becomes aware of
such overpayment. Other than the
return of such overpayment,
neither Party B nor Party A shall
incur any penalty or liability
hereunder with respect to such
overpayment.
Trade Date: April 26, 2007
Effective Date: April 30, 2007
Termination Date: October 25, 2007, subject to
adjustment in accordance with the
Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: April 30, 2007
Fixed Amount: [_]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End
Date the percentage set forth in
Schedule A as the Cap Rate for
such Floating Rate Payer Period
End Date.
Floating Rate Payer Period End Dates: The 25th day of each month,
commencing May 25, 2007, through
and including the Termination
Date, subject to adjustment in
accordance with the Business Day
Convention.
N-2-3
Floating Rate Payer Payment Dates: Early Payment shall be applicable.
The Floating Rate Payer Payment
Dates shall be one (1) Business
Day prior to each Floating Rate
Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however,
that if the Floating Rate Option
for any Calculation Period is
greater than 10.260%, then the
Floating Rate Option for such
Calculation Period shall be deemed
to be 10.260%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT ▇▇▇▇▇▇▇▇▇▇▇
with JPMorgan Chase Bank, New York ▇▇▇▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Account Number 400930153
N-2-4
Account Details for Party B:
▇▇▇▇▇ Fargo Bank, N.A.
San Francisco, California
ABA#: ▇▇▇-▇▇▇-▇▇▇
Account#: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
FFC#: 53138702; Corridor Contract Account
Ref: MANA 2007-A3
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by ▇▇▇▇▇ Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of ▇▇▇▇▇ Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall ▇▇▇▇▇ Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the
N-2-5
Securities Administrator (as defined in the Pooling and Servicing
Agreement) will promptly remit such amounts to the Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-2-6
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/6486 Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC ▇▇▇▇▇ FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., ITS INDIVIDUALLY, BUT SOLELY AS
AGENT SECURITIES ADMINISTRATOR FOR THE
ISSUING ENTITY WITH RESPECT TO THE
▇▇▇▇▇▇▇ ▇▇▇▇▇ ALTERNATIVE NOTE
ASSET TRUST, SERIES 2007-A3
---------------------------------------- -------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-2-7
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD): Cap Rate:
------------------- ----------------- ---------------------- ---------
04/30/07 05/25/07 269,066,000 7.576
05/25/07 06/25/07 260,654,390 6.601
06/25/07 07/25/07 252,485,191 6.829
07/25/07 08/25/07 244,556,121 6.601
08/25/07 09/25/07 236,860,124 6.601
09/25/07 10/25/07 229,390,356 6.830
N-2-8
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT N-3
FORM OF SUBORDINATE CERTIFICATE CORRIDOR CONTRACT
Date: April 30, 2007
To: ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as
securities administrator (the "SECURITIES
ADMINISTRATOR") for the Issuing Entity with respect to
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series
2007-A3
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Client Manager - MANA 2007-A3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 3UR
Attn: Swaps Administration
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Copy To: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department - Derivatives Documentation
Tel.: ▇▇▇-▇▇▇-▇▇▇▇/32
Fax: ▇▇▇-▇▇▇-▇▇▇▇/34
Our Reference No.: IRG16267586.2A/2B
Re: Interest Rate Corridor Transaction
Ladies and Gentlemen:
N-3-1
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Securities Administrator
for the Issuing Entity (the "Issuing Entity") created under the Pooling and
Servicing Agreement ("Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the
Definitions or the Agreement to a "Swap Transaction" shall be deemed to be
references to this Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of April 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation
Period, the lesser of (i) the amount
set forth on Schedule A attached
hereto and (ii) the aggregate
Certificate Balance of the Class M
Certificates and the Class B
Certificates (together, the
"Certificates") as of the first day
of such Calculation Period (the
"Relevant Balance").
The Securities Administrator shall
make available each month on its
website a statement containing the
Relevant Balance at least five (5)
Business Days prior to the related
Floating Rate Payer Payment Date, and
Party A shall be entitled to rely
conclusively upon such statement. The
Securities Administrator's internet
website is located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance
in using the website can be obtained
by calling ▇▇▇-▇▇▇-▇▇▇▇.
Any payment by Party A to Party B in
excess of the amount due under this
Transaction on any Floating Rate
Payer Payment Date (as a result of
the Notional Amount for the related
Calculation Period being other than
the amount set forth in Schedule A
N-3-2
hereto for such Calculation Period)
shall be returned by Party B to Party
A as soon as Party B becomes aware of
such overpayment. Other than the
return of such overpayment, neither
Party B nor Party A shall incur any
penalty or liability hereunder with
respect to such overpayment.
Trade Date: April 26, 2007
Effective Date: April 30, 2007
Termination Date: October 25, 2007, subject to
adjustment in accordance with the
Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: April 30, 2007
Fixed Amount: [_]
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: For each Floating Payer Period End
Date the percentage set forth in
Schedule A as the Cap Rate for such
Floating Rate Payer Period End Date.
Floating Rate Payer Period End Dates: The 25th day of each month,
commencing May 25, 2007, through and
including the Termination Date,
subject to adjustment in accordance
with the Business Day Convention.
Floating Rate Payer Payment Dates: Early Payment shall be applicable.
The Floating Rate Payer Payment Dates
shall be one (1) Business Day prior
N-3-3
to each Floating Rate Payer Period
End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however,
that if the Floating Rate Option for
any Calculation Period is greater
than 8.690%, then the Floating Rate
Option for such Calculation Period
shall be deemed to be 8.690%
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable:
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT ▇▇▇▇▇▇▇▇▇▇▇
with JPMorgan Chase Bank, New York ▇▇▇▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Account Number 400930153
Account Details for Party B:
▇-▇-▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
ABA#: ▇▇▇-▇▇▇-▇▇▇
Account#: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
FFC#: 53138702; Corridor Contract Account
Ref: MANA 2007-A3
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A., not
individually or personally but solely as Securities Administrator of the
Issuing Entity, in the exercise of the powers and authority conferred and
vested in it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity is made and intended not as personal representations,
undertakings and agreements by ▇▇▇▇▇ Fargo Bank, N.A. but is made and
intended for the purpose of binding only the Issuing Entity, (iii) nothing
herein contained shall be construed as creating any liability on the part
of ▇▇▇▇▇ Fargo Bank, N.A., individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall ▇▇▇▇▇ Fargo Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuing Entity or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B under
this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
N-3-5
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
N-3-6
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ / 6486 Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC ▇▇▇▇▇ FARGO BANK, N.A., NOT
BY: GREENWICH CAPITAL MARKETS, INC., INDIVIDUALLY, BUT SOLELY AS SECURITIES
ITS AGENT ADMINISTRATOR FOR THE ISSUING ENTITY
WITH RESPECT TO THE ▇▇▇▇▇▇▇ ▇▇▇▇▇
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A3
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
N-3-7
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD): Cap Rate:
------------------- ----------------- ---------------------- ---------
04/30/07 05/25/07 25,113,000 7.095
05/25/07 06/25/07 25,113,000 5.957
06/25/07 07/25/07 25,113,000 6.183
07/25/07 08/25/07 25,113,000 5.957
08/25/07 09/25/07 25,113,000 5.957
09/25/07 10/25/07 25,113,000 6.183
N-3-8
EXHIBIT O
ADDITIONAL DISCLOSURE NOTIFICATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial Center, 10th Floor
New York, New York 10080
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 3.18(b) of the Pooling and Servicing
Agreement, dated as of April 1, 2007, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc., as depositor, ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and securities
administrator and HSBC Bank USA, National Association, as trustee, the
undersigned, as [ ], hereby notifies you that certain events have come to our
attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [_______],
phone number: [_______]; email address: [_______].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
Title:
O-1
EXHIBIT P
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 World Financial Center, 10th Floor
New York, New York 10080
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note Asset Trust, Series 2007-A3 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the [related
servicing agreement] (the "Servicing Agreement") has been made under my
supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the related Servicing Agreement in all
material respects throughout such year or a portion thereof[, or, if there has
been a failure to fulfill any such obligation in any material respect, I have
specified below each such failure known to me and the nature and status
thereof].
Date:
------------------------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
P-1
EXHIBIT Q-1
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
ITEM 1: DISTRIBUTION AND POOL
PERFORMANCE INFORMATION
Information included in the [Monthly Master Servicer
Statement] Servicer
Securities Administrator
Any information required by 1121 Depositor
which is NOT included on the [Monthly
Statement]
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated
by governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other Servicer
than the Master Servicer or
Securities Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
ITEM 3: SALE OF SECURITIES AND USE OF Depositor
PROCEEDS
Information from Item 2(a) of Part II
of Form 10-Q:
With respect to any sale of
securities by the sponsor, depositor
or issuing entity, that are backed by
the same asset pool or are otherwise
issued by the issuing entity, whether
or not registered, provide the sales
and use of proceeds information in
Item 701 of Regulation S-K. Pricing
information can be omitted if
securities were not registered.
Q-1-1
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
ITEM 4: DEFAULTS UPON SENIOR Securities Administrator
SECURITIES Trustee
Information from Item 3 of Part II of
Form 10-Q:
Report the occurrence of any Event of
Default (after expiration of any
grace period and provision of any
required notice)
ITEM 5: SUBMISSION OF MATTERS TO A Securities Administrator
VOTE OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of
Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* This information need only be
reported on the Form 10-D for
the distribution period in which
updated information is required
pursuant to the Item.
ITEM 7: SIGNIFICANT ENHANCEMENT
PROVIDER INFORMATION
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
- Determining applicable Depositor
disclosure threshold
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
Item 1115(b) - Derivative
Counterparty Financial Information*
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-D for
the distribution period in which
updated information is required
pursuant to the Items.
Q-1-2
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
ITEM 8: OTHER INFORMATION Any party responsible for the applicable
Form 8-K Disclosure item
Disclose any information required to
be reported on Form 8-K during the
period covered by the Form 10-D but
not reported
ITEM 9: EXHIBITS
Monthly Statement to Securities Administrator
Certificateholders
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
Q-1-3
EXHIBIT Q-2
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for disclosure
Disclose any information required to items on Form 8-K
be reported on Form 8-K during the
fourth quarter covered by the Form
10-K but not reported
ITEM 15: EXHIBITS, FINANCIAL Securities Administrator
STATEMENT SCHEDULES Depositor
REG AB ITEM 1112(B): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Depositor
Information*
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1114(B)(2): CREDIT
ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
- Determining applicable disclosure Depositor
threshold
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1115(B): DERIVATIVE
COUNTERPARTY FINANCIAL INFORMATION
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated
by
Q-2-1
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer,
Securities Administrator
and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling
and Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other Servicer
than the Master Servicer or
Securities Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor as to (a)
Depositor or Issuing Entity is an Sponsor/Seller as to (a)
affiliate of the following parties,
and (b) to the extent known and
material, any of the following
parties are affiliated with one
another:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Whether there are any "outside the Depositor as to (a)
ordinary course business Sponsor/Seller as to (a)
arrangements" other than would be
obtained in an arm's length
transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity
on the one hand, and (b) any of the
following parties (or their
affiliates) on the other hand, that
exist currently or within the past
two years and that are material to a
Certificateholder's understanding of
the Certificates:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
Q-2-2
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Whether there are any specific Depositor as to (a)
relationships involving the Sponsor/Seller as to (a)
transaction or the pool assets
between (a) the Sponsor (Seller),
Depositor or Issuing Entity on the
one hand, and (b) any of the
following parties (or their
affiliates) on the other hand, that
exist currently or within the past
two years and that are material:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Q-2-3
EXHIBIT Q-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding
entry into or amendment of any
definitive agreement that is material
to the securitization, even if
depositor is not a party.
Examples: servicing agreement,
custodial agreement.
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
ITEM 1.02- TERMINATION OF A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding
termination of any definitive
agreement that is material to the
securitization (other than expiration
in accordance with its terms), even
if depositor is not a party.
Examples: servicing agreement,
custodial agreement.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with
respect to any of the following:
- Sponsor (Seller) Depositor/Sponsor (Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or Servicer
more of the pool assets at the
time of the report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
- Derivative Counterparty Depositor
Q-3-1
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
- Custodian Custodian
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN OBLIGATION Securities Administrator
UNDER AN OFF-BALANCE SHEET
ARRANGEMENT
Includes an early amortization,
performance trigger or other event,
including event of default, that
would materially alter the payment
priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events
other than waterfall triggers which
are disclosed in the monthly
statements to the certificateholders.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any
material modification to documents
defining the rights of
Certificateholders, including the
Pooling and Servicing Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS; CHANGE OF
FISCAL YEAR
Disclosure is required of any
amendment "to the governing documents
of the issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal,
replacement, substitution or addition
of any master servicer, affiliated
servicer, other servicer servicing
10% or more of pool assets at time of
report, other material servicers or
trustee.
Reg AB disclosure about any new Servicer/Master Servicer/Depositor
servicer or master servicer is also
required.
Reg AB disclosure about any new Trustee
Trustee is also required.
ITEM 6.03- CHANGE IN CREDIT Depositor/Securities Administrator
ENHANCEMENT OR EXTERNAL SUPPORT
Covers termination of any enhancement
in manner other than by its terms,
the addition of an enhancement, or a
material change in the
Q-3-2
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
------------------------------------- ----------------------------------------
enhancement provided. Applies to
external credit enhancements as well
as derivatives.
Reg AB disclosure about any new Depositor
enhancement provider is also
required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING Depositor
DISCLOSURE
If any material pool characteristic
differs by 5% or more at the time of
issuance of the securities from the
description in the final prospectus,
provide updated Reg AB disclosure
about the actual asset pool.
If there are any new servicers or Depositor
originators required to be disclosed
under Regulation AB as a result of
the foregoing, provide the
information called for in Items 1108
and 1110 respectively.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called
for in Form 8-K, that the registrant
deems of importance to
certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND Responsible party for reporting/
EXHIBITS disclosing the financial statement
or exhibit
Q-3-3
(RBS LOGO)
The Royal Bank of Scotland
EXHIBIT R
FORM OF SWAP AGREEMENT
Date: April 30, 2007
To: ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as
supplemental interest trust trustee (the "SUPPLEMENTAL
INTEREST TRUST TRUSTEE") for the Supplemental Interest
Trust with respect to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Client Manager - MANA 2007-A3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
From: The Royal Bank of Scotland plc
c/o RBS Financial Markets
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 3UR
Attn: Swaps Administration
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Copy To: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department - Derivatives Documentation
Tel.: ▇▇▇-▇▇▇-▇▇▇▇/32
Fax: ▇▇▇-▇▇▇-▇▇▇▇/34
Our Reference No.: D16267578
Re: Interest Rate Swap Transaction
Ladies and Gentlemen:
R-1
The purpose of this letter agreement is to set forth the terms and conditions of
the Transaction entered into between Royal Bank of Scotland plc ("Party A") and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as supplemental interest
trust trustee for the supplemental interest trust (the "Supplemental Interest
Trust") created under the Pooling and Servicing Agreement ("Party B") on the
Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
For the purpose of this Confirmation, all references in the
Definitions or the Agreement to a "Swap Transaction" shall be deemed to be
references to this Transaction.
1. This Confirmation supplements, forms part of, and is subject to, ISDA
Master Agreement and Schedule dated as of April 30, 2007 (as the same may
be amended or supplemented from time to time, the "Agreement"), between
Party A and Party B. All provisions contained in the Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation
Period, the amount set forth on
Schedule A attached hereto.
Trade Date: April 26, 2007
Effective Date: April 30, 2007
Termination Date: April 25, 2012, subject to adjustment
in accordance with the Business Day
Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Period End Dates: The 25th day of each month of each
year commencing November 25, 2007,
through and including the Termination
Date, subject to No Adjustment.
Fixed Rate Payer Payment Date: Early Payment shall be applicable.
The Fixed Rate Payer Payment Dates
shall be one (1) Business Day prior
to each Fixed Rate Payer Period End
Date.
R-2
Fixed Rate: 4.85%
Fixed Rate Day Count Fraction: 30/360
Additional Fixed Amount: [_]
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Period End Dates: The 25th day of each month,
commencing November 25, 2007, through
and including the Termination Date,
subject to adjustment in accordance
with the Business Day Convention.
Floating Rate Payer Payment Dates: Early Payment shall be applicable.
The Floating Rate Payer Payment Dates
shall be one (1) Business Day prior
to each Floating Rate Payer Period
End Date.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable
R-3
Calculation Agent: Party A
Business Days: New York
Business Day Convention Modified Following
3. Account Details:
Account Details for Party A:
For the account of The Royal Bank of Scotland
Financial Markets Fixed Income and Interest Rate
Derivative Operations, London SWIFT ▇▇▇▇▇▇▇▇▇▇▇
with JPMorgan Chase Bank, New York ▇▇▇▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Account Number 400930153
Account Details for Party B:
(A): For the payment of the Additional Floating Amount only:
Deutsche Bank, New York, NY
ABA# ▇▇▇▇▇▇▇▇▇
Acct# 00854209
Account Name ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending
Deal Name: Mana 2007-A3
Reference: ▇▇▇▇▇ ▇▇▇
(B): For all other payments:
▇▇▇▇▇ Fargo Bank, N.A.
San Francisco, California
ABA#: ▇▇▇-▇▇▇-▇▇▇
Account#: ▇▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing
FFC#: 53138701; Swap Contract Account
Ref: MANA 2007-A3
4. Offices:
The Office of Party A for this Transaction is London, England.
The Office of Party B for this Transaction is Columbia, MD.
5. It is expressly understood and agreed by the parties hereto that (i) this
Confirmation is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A., not
individually or personally but
R-4
solely as supplemental interest trust trustee of the Supplemental Interest
Trust, in the exercise of the powers and authority conferred and vested in
it under the Pooling and Servicing Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Supplemental Interest Trust is made and intended not as personal
representations, undertakings and agreements by ▇▇▇▇▇ Fargo Bank, N.A. but
is made and intended for the purpose of binding only the Supplemental
Interest Trust, (iii) nothing herein contained shall be construed as
creating any liability on the part of ▇▇▇▇▇ Fargo Bank, N.A., individually
or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto and (iv) under no circumstances shall ▇▇▇▇▇ Fargo Bank, N.A. be
personally liable for the payment of any indebtedness or expenses of the
Supplemental Interest Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
Party B under this Confirmation or any other related documents.
6. Agency Role of Greenwich Capital Markets, Inc. This Transaction has been
entered into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A under this
Transaction.
7. MLML Shall Not Benefit. The parties hereto agree and acknowledge that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending, Inc. ("MLML") or any of its affiliates. If MLML or any of
its affiliates receives any such amounts, it will promptly remit (or, if
such amounts are received by an affiliate of MLML, MLML hereby agrees that
it will cause such affiliate to promptly remit) such amounts to the
Securities Administrator (as defined in the Pooling and Servicing
Agreement), whereupon the Securities Administrator (as defined in the
Pooling and Servicing Agreement) will promptly remit such amounts to the
Cap Provider.
8. In the event that the transaction to which the Pooling and Servicing
Agreement relates does not occur, and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Alternative Note
Asset Trust, Series 2007-A3 is not formed, Party A and MLML agree that MLML
shall become Party B under this Confirmation.
[Signature Page Immediately Follows]
R-5
Please promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
The Royal Bank of Scotland plc
Attention: Derivatives Documentation
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ / 6486 Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For and on behalf of For and on behalf of
THE ROYAL BANK OF SCOTLAND PLC ▇▇▇▇▇ FARGO BANK, N.A., NOT INDIVIDUALLY,
BY: GREENWICH CAPITAL MARKETS, INC., BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST
ITS AGENT TRUSTEE FOR THE SUPPLEMENTAL INTEREST
TRUST WITH RESPECT TO THE ▇▇▇▇▇▇▇ ▇▇▇▇▇
ALTERNATIVE NOTE ASSET TRUST, SERIES
2007-A3
------------------------------------ -----------------------------------------
Name: Name:
------------------------------ -----------------------------------
Title: Title:
----------------------------- ----------------------------------
Date: Date:
------------------------------ -----------------------------------
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
R-6
SCHEDULE A
All dates subject to adjustment in accordance with the Modified Following
Business Day Convention.
From and including: To but excluding: Notional Amount (USD):
------------------- ----------------- ----------------------
10/25/07 11/25/07 394,166,670
11/25/07 12/25/07 378,593,329
12/25/07 01/25/08 362,279,503
01/25/08 02/25/08 345,504,927
02/25/08 03/25/08 328,793,944
03/25/08 04/25/08 312,814,895
04/25/08 05/25/08 297,589,264
05/25/08 06/25/08 283,250,065
06/25/08 07/25/08 269,608,547
07/25/08 08/25/08 256,629,464
08/25/08 09/25/08 244,221,896
09/25/08 10/25/08 232,555,312
10/25/08 11/25/08 221,607,368
11/25/08 12/25/08 211,160,606
12/25/08 01/25/09 199,408,712
01/25/09 02/25/09 186,263,030
02/25/09 03/25/09 175,202,053
03/25/09 04/25/09 165,728,837
04/25/09 05/25/09 156,829,855
05/25/09 06/25/09 148,402,221
06/25/09 07/25/09 140,412,405
07/25/09 08/25/09 132,834,233
08/25/09 09/25/09 125,636,758
09/25/09 10/25/09 118,728,175
10/25/09 11/25/09 111,947,456
11/25/09 12/25/09 105,066,536
12/25/09 01/25/10 93,283,566
01/25/10 02/25/10 75,997,288
02/25/10 03/25/10 64,005,819
03/25/10 04/25/10 59,002,164
04/25/10 05/25/10 55,133,688
05/25/10 06/25/10 51,510,831
06/25/10 07/25/10 48,103,857
07/25/10 08/25/10 44,883,885
08/25/10 09/25/10 41,845,675
09/25/10 10/25/10 38,983,053
10/25/10 11/25/10 38,983,053
11/25/10 12/25/10 38,761,158
12/25/10 01/25/11 36,398,638
01/25/11 02/25/11 34,176,757
02/25/11 03/25/11 32,077,241
03/25/11 04/25/11 30,084,437
R-7
04/25/11 05/25/11 28,222,446
05/25/11 06/25/11 26,470,255
06/25/11 07/25/11 24,825,393
07/25/11 08/25/11 23,272,613
08/25/11 09/25/11 21,810,623
09/25/11 10/25/11 20,424,364
10/25/11 11/25/11 19,035,431
11/25/11 12/25/11 17,386,848
12/25/11 01/25/12 13,562,694
01/25/12 02/25/12 6,140,202
02/25/12 03/25/12 2,861,843
03/25/12 04/25/12 2,861,843
R-8